Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition, except: (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business; (b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof); (c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment; (d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million; (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; provided, that any transfer from a Loan Party shall be to another Loan Party; (f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business; (g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business; (h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority; (j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19); (k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date; (l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years); (m) sales, transfers and other 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; (n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole; (o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith; (p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind; (q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; (r) the granting of Liens not prohibited by this Agreement; (s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of: (i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released, (ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and (iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 5 contracts
Samples: Credit Agreement (Entercom Communications Corp), Credit Agreement (CBS Radio Inc.), Credit Agreement (Entercom Communications Corp)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedunneeded, obsolete unproductive or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course Ordinary Course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of businessBusiness to Persons;
(b) Dispositions of inventory and leases of property, in each case in the disposition Ordinary Course of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)Business;
(c) Dispositions of equipment or real property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment similar replacement property for use in the Ordinary Course of Business, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property for use in the Ordinary Course of Business or (iii) the board of directors or senior management of the Company or such Subsidiary has determined in good faith that is permitted the failure to replace such property will not be made, and is made, under Section 7.05 detrimental to the business of the Company or any Permitted Investmentsuch Subsidiary;
(d) Dispositions of property by any disposition Subsidiary to the Company or to a wholly-owned Subsidiary of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionCompany;
(e) any disposition of property or assets or issuance of securities Dispositions comprising transactions expressly permitted by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.04(a) through (c);
(f) to the extent qualifying for non-recognition under Section 1031 exclusive licenses or sublicenses of IP Rights in the Ordinary Course of Business and substantially consistent with past practice for terms not exceeding five years and leases and subleases granted to others that do not materially interfere with the Ordinary Course of Business of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessCompany and its Subsidiaries;
(g) the leasesale, assignment without recourse and in the Ordinary Course or sub-lease Business, of accounts receivable due from Federal, state or other Governmental Authority arising in the Ordinary Course of Business (and not as part of any real bulk sale or personal property financing of receivables) in an amount not to exceed $25,000,000 in any fiscal year or $50,000,000 in the ordinary course aggregate after the date of businessthis Agreement;
(h) Dispositions of non-core assets acquired in a permitted Acquisition by the Company or any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiaryits Subsidiaries within 12 months of such Acquisition;
(i) foreclosures on assets or Dispositions of assets required property constituting (i) the making of Investments permitted under Section 7.02, (ii) Indebtedness permitted under Section 7.03 and/or (iii) the making of Restricted Payments permitted by Law, governmental regulation or any Governmental AuthoritySection 7.07;
(j) sales the Disposition of accounts receivableequity interests in, or participations thereinassets of, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);GLC Venture or any Project Debt Entity; and
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries Dispositions after the Closing Date;
date of this Agreement not otherwise permitted under clauses (la) the licensing or sub-licensing of intellectual property or other general intangibles through (j) above in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures an aggregate amount not 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 7510% of the consideration therefor received by consolidated total assets of the Borrower or such Restricted Subsidiary, Company and its Subsidiaries as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetDisposition, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borroweraccordance with GAAP; provided that any Disposition pursuant to subsections (a) through (k) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and this Section 7.05 shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 5 contracts
Samples: Limited Waiver and Amendment to Credit Agreement (Granite Construction Inc), Credit Agreement (Granite Construction Inc), Credit Agreement (Granite Construction Inc)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Permitted Transfers;
(b) Dispositions of cash, Cash Equivalents or Investment Grade Securities or damagedsurplus, obsolete or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (business, and the abandonment or other assetsdisposition of intellectual property that is, in the reasonable good faith judgment of the Borrower, no longer economically or commercially practicable or necessary to maintain or useful in the conduct of the business of the Loan Parties;
(c) held Dispositions of equipment or real property to the extent that (i) such property is exchanged for sale credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) (i) Dispositions constituting transactions permitted by Sections 7.01 (to the extent any Lien is deemed to be a transfer), 7.03, 7.04 and 7.06 and (ii) leases or subleases of interests in real property in the ordinary course of business;
(be) the disposition surrender or waiver of all contractual rights or substantially all the settlement, release or surrender of contract or tort claims in the assets ordinary course of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Partybusiness;
(f) to Dispositions of accounts which have been written off or in respect of which a bad debt reserve has been taken on the extent qualifying for non-recognition under Section 1031 books and records of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessLoan Parties;
(g) discounts or compromises for less than the lease, assignment or sub-lease face value of any real or personal property accounts receivable in order to resolve disputes that occur in the ordinary course of business;
(h) retiring or cancelling any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiarytreasury stock;
(i) foreclosures on assets or Dispositions of assets if and to the extent required by Lawapplicable law, governmental regulation sales or any Governmental Authoritydisposals of Equity Interests of a Foreign Subsidiary to Persons proposed to become members of the Board of such Foreign Subsidiary in order to qualify such Persons as members of the Board;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1i) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to paid in connection therewith shall be in an amount not less than the fair market value of the property disposed of, (as determined ii) such transaction does not involve the sale or other disposition of a minority Equity Interests in good faith any Subsidiary, (iii) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this Section, and (iv) the Borrower) aggregate net book value of all of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or Loan Parties and their Subsidiaries in all such Restricted Subsidiary, as the case may be, is transactions in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) fiscal year of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) shall not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose1,000,000.
Appears in 5 contracts
Samples: Credit Agreement (Hackett Group, Inc.), Credit Agreement (Hackett Group, Inc.), Credit Agreement (Hackett Group, Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:except (each, a “Permitted Disposition”):
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful (i) inventory in the business ordinary course of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerbusiness, in each case, (ii) goods held for sale in the ordinary course of business and (iii) other assets (including allowing any registrations or any disposition applications for registration of any immaterial Intellectual Property to lapse or transfer of inventory or goods become abandoned but excluding any Real Property) having Fair Market Value not exceeding (or other assetsx) held $150,000,000 per Fiscal Year for sale any such Disposition and (y) $250,000,000 in the aggregate for all such Dispositions, in each case, in the ordinary course of business;
(b) non-exclusive licenses of Intellectual Property of a Loan Party or any of its Subsidiaries, provided that such licenses shall not interfere with the disposition of all or substantially all ability of the assets Agent to exercise any of its rights and remedies with respect to any Restricted Subsidiary in of the Collateral or have a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)material adverse effect on the value of the Intellectual Property;
(c) licenses for the making conduct of any Restricted Payment licensed departments within the Loan Parties’ Stores and leases or other occupancy agreements for banks and for other uses customarily located in the Loan Parties’ Stores, in each case in the ordinary course of business, but only to the extent that is permitted to be madesuch licenses, leases and is made, under Section 7.05 or any Permitted Investmentoccupancy agreements do not have a Material Adverse Effect on the operations of such Stores;
(d) any disposition Dispositions of assets Equipment (including abandonment of or issuance other failures to maintain and preserve) so long as after giving effect to such Disposition, no Default or sale Event of Equity Interests of any Restricted Subsidiary in any transaction Default shall exist or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionhave occurred and be continuing;
(e) Dispositions among the Loan Parties or by 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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) Dispositions by any Restricted Subsidiary which is not a Loan Party to another Restricted Subsidiary that is not a Loan Party;
(g) contributions of real property by a Loan Party to a Real Estate Subsidiary; provided that any transfer of Real Estate constituting Collateral pursuant to this clause (g) shall only be permitted to the extent qualifying that such Real Estate Subsidiary shall be a Loan Party or the Parent Borrower has determined that such transfer is reasonably required to obtain any applicable Qualified Real Estate Financing Facility; provided that, immediately before and after giving effect thereto, the Loan-to-Value Ratio as of such date (calculated on a pro forma basis after giving effect to such transaction, including the use of proceeds thereof) is less than or equal to 0.70:1.00;
(h) any Disposition which constitutes a Permitted Investment, Restricted Payment hereunder or Permitted Lien (or an enforcement thereof) or a transaction permitted by Section 10.4;
(i) Dispositions by any Loan Party or any Restricted Subsidiary of its right, title and interest in and to any Real Property and related Fixtures, including, without limitation, Dispositions to any other Restricted Subsidiary or in connection with sale-leaseback transactions;
(j) Dispositions of the Equity Interests of any Real Estate Financing Loan Party or Unrestricted Subsidiary;
(k) (i) Dispositions consisting of the compromise, settlement or collection of accounts receivable in the ordinary course of business and consistent with past practice, (ii) sales of assets received by a Borrower or any Subsidiary upon foreclosure of a Permitted Lien, and (iii) the sale or discount (with or without recourse, and on customary or commercially reasonable terms and for noncredit management purposes) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable;
(l) Dispositions consisting of (i) leases, assignments or subleases in the ordinary course of business, including leases of closed Stores, and (ii) the grant of any license or sublicense of patents, trademarks, know-recognition how and any other intellectual property or other general intangibles;
(m) Dispositions in connection with an IPO Reorganization;
(n) Dispositions of other assets outside of the ordinary course of business;
(i) a sale of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” to a Receivables Subsidiary in a Qualified Receivables Financing or in factoring or similar transactions, and (ii) a transfer of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Financing;
(p) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of a Borrower or any of its Subsidiaries;
(q) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (including to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(gr) any exchange of assets for assets or services (other than current assets) related to a similar business of comparable or greater market value or usefulness to the leasebusiness of Albertson’s Group as a whole, assignment or sub-lease of any real or personal property as determined in good faith by the ordinary course of businessParent Borrower;
(hs) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(t) any disposition of Excluded Property (or the Equity Interests of Persons substantially all of the assets of which constitute Excluded Property);
(nu) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination Dispositions to effectuate Section 5.4 of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeSafeway Merger Agreement;
(ov) an issuance Dispositions of Equity Interests the Eastern Division Assets pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faithEastern Division Sale Agreement;
(pw) Dispositions of Divested Properties required pursuant to Section 5.9 of the Safeway Merger Agreement;
(x) Dispositions of the assets of, and the Equity Interests in, PDC and Casa Ley;
(y) any disposition of capital stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than a Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(z) any surrender or waiver of contract rights or the settlement, release, recovery on release or surrender of contract, tort or other claims of any kind;; and
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(raa) the granting unwinding of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (any Hedging Obligations or Swap Contracts pursuant to its terms. provided, that to the extent any Collateral is Disposed of in a Permitted Disposition to any Person other than any Loan Party and the Net Proceeds therefrom are applied in accordance with this Agreement, such joint venture constitutes Collateral shall be sold free and clear of all Liens created by the Financing Agreements; provided further that in connection with any Disposition of Material Real Property permitted under this Agreement, the Parent Borrower shall cause the Loan Parties to deliver promptly to Agent a supplement to Schedule 8.4(b)(1) which shall set forth the address of all Material Real Property that is owned by the Loan Parties and each of their Restricted Subsidiary) so long Subsidiaries as the aggregate fair market value (determined, with respect of such date after giving effect to each such Disposition; provided further that any Disposition of any property pursuant to Sections 10.5(d), (g), (i), (j) (as it relates to Real Estate Subsidiaries) and (n) having a Fair Market Value in excess of $25,000,000, (i) shall be for no less than Fair Market Value of such property at the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2ii) except in the case of a Permitted Asset Swap, either (x) at least 75% of the consideration therefor received (other than (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or such any of its Restricted Subsidiary, as Subsidiaries and the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee liability in connection with the transactions relating to such Disposition, (B) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any securities, notes or other obligations or securities received by the Borrower or any such of its Restricted Subsidiary Subsidiaries from such the transferee that are converted by the Borrower or any such of its Restricted Subsidiary Subsidiaries into cash or Cash EquivalentsEquivalents 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 other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition, (D) consideration consisting of Indebtedness of the Borrower (other than Subordinated Indebtedness) received after the Escrow Release Date from Persons who are not the Borrower or by their terms are required to any Restricted Subsidiary and (E) in connection with an asset swap, all of which shall be satisfied for deemed “cash”) received is cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by to the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with extent that all other Designated Non-Cash Consideration received pursuant to this clause at such time does not exceed the greater of $750,000,000 and 2.25% of Total Assets (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value Fair Market Value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value) and all of the consideration received is at least equal to the Fair Market Value of the assets sold, shalltransferred or otherwise disposed of, or (y) such Disposition results in each casea Loan Party or a Restricted Subsidiary of a Loan Party acquiring (whether by purchase, exchange, merger, consolidation, amalgamation or other business combination) assets constituting a business unit, line of business or division of another Person or Equity Interests in any Person that is in the same line of business as the Loan Parties, or a business that is reasonably related, complementary, ancillary or incidental to the business of the Loan Parties in a transaction that is permitted by (1) if the Person acquired will become a Loan Party or the assets acquired will be deemed to be cash for purposes owned by a Loan Party or otherwise pledged as Collateral, Section 10.2(o), or (2) in all other cases, any clause of this provision and for no Section 10.2 (other purposethan clause (o)).
Appears in 5 contracts
Samples: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)
Dispositions. The Borrower shall Reporting Entity will not, and shall will not permit any Restricted Subsidiary to, convey, sell, assign, transfer or otherwise dispose of (each a “Disposition”) any of its Restricted Subsidiaries toproperty or assets outside the ordinary course of business, consummate other than to any Dispositionmember of the Consolidated Group, exceptexcept for:
(a) any disposition Dispositions of cashassets and property that are (i) obsolete, Cash Equivalents or Investment Grade Securities or worn, damaged, obsolete uneconomic or worn out equipment or other assets, or assets otherwise deemed by any member of the Consolidated Group to no longer used be necessary or useful in the business operation of such member of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of Consolidated Group’s current or anticipated business or any disposition (ii) replaced by other assets or transfer property of inventory or goods (or other assets) held for sale in the ordinary course of businesssimilar suitability and value;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)cash and Cash Equivalents;
(c) Dispositions of accounts receivable (i) in connection with the making compromise or collection thereof, (ii) deemed doubtful or uncollectible in the reasonable discretion of any Restricted Payment that is permitted member of the Consolidated Group, (iii) obtained by any member of the Consolidated Group in the settlement of joint interest billing accounts, (iv) granted to be made, settle collection of accounts receivable or the sale of defaulted accounts arising in connection with the compromise or collection thereof and is made, under Section 7.05 not in connection with any financing transaction or any (v) in connection with a Permitted InvestmentReceivables Facility;
(d) any disposition other Disposition (not otherwise permitted under this Agreement) of any assets or issuance or sale of Equity Interests of any Restricted Subsidiary property; provided that after giving effect thereto, the Reporting Entity would be in any transaction or series of transactions pro forma compliance with an aggregate fair market value (as determined the covenants set forth in good faith by the Borrower) not to exceed $5 millionSection 10.2;
(e) Dispositions by any disposition member of property the Consolidated Group of all or assets or issuance any portion of securities by any Subsidiary that is not a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Material Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 leases, licenses, subleases or sublicenses by any member of the Code, or any comparable or successor provision, any exchange Consolidated Group of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal intellectual property in the ordinary course of business;
(g) Dispositions arising as a result of (i) the granting or incurrence of Liens permitted under Section 10.3 or (ii) transactions permitted under Section 10.4 (other than Section 10.4(d)) of this Agreement;
(h) any issuance Disposition or sale series of Equity Interests in, related Dispositions that does not individually or Indebtedness or other securities of, an Unrestricted Subsidiaryin the aggregate exceed $10,000,000;
(i) foreclosures on assets Dispositions constituting terminations or Dispositions expirations of assets required by Lawleases, governmental regulation or any Governmental Authority;licenses and other agreements in the ordinary course of business; and
(j) sales contributions of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles assets in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in to 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 lapse or abandonment of intellectual property rights entered into in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposebusiness.
Appears in 5 contracts
Samples: Note Purchase Agreement (STERIS PLC), Note Purchase Agreement (STERIS PLC), Note Purchase Agreement (STERIS PLC)
Dispositions. The Neither the Borrower shall not, and shall not permit nor any of its Restricted the Subsidiaries toshall, consummate directly or indirectly, make any DispositionDisposition or enter into any agreement to make any Disposition (other than as part of or in connection with the Original Transactions), except:
(a) any disposition (i) Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business 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 Subsidiaries and (ii) Dispositions outside the ordinary course of business of property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries (and for consideration complying with the Restricted Subsidiaries requirements applicable to Dispositions pursuant to clause (j) below) in the reasonable opinion an aggregate amount not to exceed $15,000,000;
(b) Dispositions of the Borrowerinventory, in each case, goods held for sale in the ordinary course of business and immaterial assets (including allowing any registrations or any disposition applications for registration of any intellectual property to lapse or transfer of inventory or goods (or other assetsgo abandoned) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) Dispositions of property to the Borrower or any disposition 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, the granting of Liens permitted by Section 7.01, the making of Investments permitted by Section 7.02, mergers, consolidations and liquidations permitted by Section 7.04 (other than Section 7.04(f)) and Restricted Payments permitted by Section 7.06;
(f) [RESERVED];
(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 Subsidiaries, taken as a whole;
(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 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 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), (r)(i), (r)(ii), (s), (bb), (ee) and (ff)); 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 Subsidiary associated with the assets or issuance 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 Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or sale the applicable Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Cash Equivalents (to the extent of Equity Interests the cash or Cash Equivalents received) within 180 days following the closing of any Restricted the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Subsidiary in any transaction or series of transactions with having an aggregate fair market value (determined as determined in good faith by of the Borrowerclosing of the applicable Disposition for which such non-cash consideration is received) not to exceed $5 million;
5,000,000 at any time (enet of any non-cash consideration converted into cash and Cash Equivalents) any disposition of property or assets or issuance of securities by a Restricted Subsidiary and (iii) to the Borrower or extent the aggregate amount of Net Proceeds received by the Borrower or its Subsidiaries from Dispositions made pursuant to this Section 7.05(j) in the aggregate exceeds $75,000,000 in any fiscal year, with unused amounts in any fiscal year being carried over to the next succeeding fiscal year only after the amount available in such subsequent fiscal year has been fully used), plus any amount available pursuant to this clause (iii) in the next succeeding fiscal year only (which amount will be permanently reduced if used in the current fiscal year) subject to a Restricted Subsidiary to another Restricted Subsidiary; providedmaximum of $150,000,000 in any fiscal year, that any transfer from a Loan Party all Net Proceeds in excess of such amount in such fiscal year shall be applied to another Loan Partyprepay Term Loans in accordance with Section 2.05(b) and may not be reinvested in the business of the Borrower or such Subsidiary;
(fk) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessDispositions listed on Schedule 7.05(k);
(gl) Dispositions or discounts without recourse of accounts receivable in connection with the lease, assignment compromise or sub-lease of any real or personal property collection thereof in the ordinary course of business;
(hm) any issuance or sale Dispositions of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiaryproperty pursuant to 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;
(in) foreclosures on assets or Dispositions any swap of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property exchange for services or other general intangibles assets in the ordinary course of business (other than exclusiveof comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, world-wide licenses that are longer than three (3) years)as determined in good faith by the management of the Borrower;
(mo) sales, transfers and other dispositions Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(np) the lapse or abandonment unwinding of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material any Swap Contracts pursuant to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;terms; and
(oq) an issuance Permitted Asset Swaps; provided that any Disposition of Equity Interests any property pursuant to benefit plans, employment agreements, equity plans, stock subscription Section 7.05(j) or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in (m) shall be for no less than the ordinary course fair market value of business or approved such property at the time of such Disposition as determined by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to . 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 joint venture constitutes a Restricted Subsidiary) so long as Collateral shall be sold free and clear of the aggregate fair market value (determinedLiens created by the Loan Documents, with respect to each such Dispositionand the Administrative Agent or the Collateral Agent, as of applicable, shall be authorized to take any actions deemed appropriate in order to effect the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 4 contracts
Samples: Credit Agreement (Summit Materials, Inc.), Credit Agreement (Summit Materials, LLC), Credit Agreement (Summit Materials, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assetsproperty, or assets property (including Intellectual Property) that is no longer used or useful in the business of the Borrower and the its Restricted Subsidiaries in the reasonable opinion of the Borrowerwhether now owned or hereafter acquired, in each case, in the ordinary course of business (it being understood that this clause (a) does not include the liquidation of any Store or any disposition or transfer the inventory and other assets located therein);
(b) Dispositions of inventory or and goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of equipment or Real Estate to the disposition of extent that such property is exchanged for credit against all or substantially all a portion of the assets purchase price of any Restricted Subsidiary similar replacement property and, if such property is Collateral, then such replacement property is made subject to Liens and security interests in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) favor of the making Collateral Agent for the benefit of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentthe Credit Parties;
(d) Dispositions of property by any disposition Subsidiary to the Borrower or to a wholly-owned Restricted Subsidiary; provided that if the transferor of assets such property is a Subsidiary Guarantor, the transferee thereof must either be the Borrower or issuance a Subsidiary Guarantor or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionInvestment permitted under Section 7.03;
(e) any disposition Dispositions permitted by Sections 7.04 (a), (b), (c), (d), (f) and (g);
(f) bulk sales or other dispositions of property or assets or issuance the inventory of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary 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 (i) in any Fiscal Year, ten percent (10%) of the number of the Borrower’s and its Restricted Subsidiaries’ Stores as of the beginning of such Fiscal Year (net of new Store openings in such Fiscal Year) and (ii) in the aggregate from and after the Closing Date, twenty-five percent (25%) of the number of the Borrower’s and its Restricted Subsidiaries’ Stores in existence as of the Closing Date (net of new Store openings), provided, that all sales of Inventory in connection with Store closings in excess of ten (10) Store closings in any three month period, shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to another Restricted Subsidiarythe Administrative Agent; provided, further that any transfer from a Loan Party shall be to another Loan Party;
(f) all Net Cash Proceeds received in connection therewith are applied to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessObligations if then required hereunder;
(g) the lease, assignment or sub-lease grants of any real or personal property licenses of Intellectual Property in the ordinary course of business, which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(h) Dispositions by the Borrower and the 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, (ii) the aggregate book value of all property Disposed of in reliance on this clause (h) in any Fiscal Year of Borrower shall not exceed $10.0 million; provided that an additional aggregate book value of not more than $5.0 million per year of property held by Foreign Subsidiaries may be Disposed of in reliance on this clause (h) and (iii) at least 75% of the purchase price for such asset shall be paid to the Borrower or such Restricted Subsidiary in cash (with an assumption of Indebtedness (other than Subordinated Indebtedness) of the Borrower or such Restricted Subsidiary by a purchaser in connection with the applicable Disposition shall be deemed to be cash for the purposes of this clause (iii));
(i) Licenses for the conduct of licensed departments (other than to an Affiliate of any Loan Party) within any Store in the ordinary course of business; and
(j) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligationshowever, that are assumed by the transferee of any such assets Disposition pursuant to clauses (or are otherwise extinguished by the transferee in connection with the transactions relating to such Dispositiona) though (d), and clauses (f) and (h) shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 4 contracts
Samples: Credit Agreement (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, (i) obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, in the ordinary course of business, and (ii) fixed operating assets (solely to the extent not constituting all or substantially all of the assets or business of the Borrower or any Subsidiary or a business unit, line of business or division of the Borrower or any Subsidiary) no longer used or useful in to the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerits Subsidiaries, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 inventory and cash equivalents (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borroweraccordance with GAAP) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(hc) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by the Borrower or any Subsidiary to the Borrower, a wholly owned Subsidiary, or a Qualified Non-Wholly Owned Subsidiary; provided that such Disposition shall be for fair market value and on arm’s-length terms;
(e) Dispositions permitted by Section 6.03;
(f) any issuance or sale of Equity Interests inof the Borrower;
(g) Dispositions by the Borrower and its Subsidiaries of the Specified Florida Properties and the Idle Properties;
(h) the sale, transfer or Indebtedness disposition of accounts in connection with the collection or other securities of, an Unrestricted Subsidiarycompromise thereof in the ordinary course of business;
(i) foreclosures on assets or Dispositions licenses of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles IP Rights in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3and substantially consistent with past practice or as otherwise permitted by Section 8(d) years)of the Security Agreement;
(mj) sales, transfers and other dispositions of Investments in joint ventures Dispositions made pursuant to the extent required by, terms of any Plan 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 lapse or abandonment of intellectual property rights Employee Benefit Arrangement in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of business;
(k) Dispositions by the Borrower and its Restricted Subsidiaries taken as a whole;
not otherwise permitted under this Section 6.04; provided that (oi) an issuance at the time of Equity Interests pursuant to benefit planssuch Disposition, employment agreements, equity plans, stock subscription no Default shall exist or shareholder agreements, stock ownership plans would result from such Disposition and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(pii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value of all property Disposed of in reliance on this clause (determined, k) in any fiscal year shall not exceed 10% of the Borrower’s consolidated assets (determined in accordance with respect to each such Disposition, GAAP) as of the time last day of such Disposition) of all such Dispositions does not exceed $5 millionthe immediately preceding fiscal year; and
(tl) Dispositions (including by way so long as no Default shall occur and be continuing, the grant of any Sale option or other right to purchase any asset in a transaction that would be permitted under the provisions of Section 6.04 above; and Lease-Back Transactionprovided, however, that (x) with respect any Disposition pursuant to which (1Section 6.04(k) the Borrower or any Restricted Subsidiary, as the case may be, receives is for consideration at the time of such Disposition at least equal equivalent to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item the property or assets Disposed, and (y) Dart shall not transfer or otherwise Dispose of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect any Material Xxxx except as permitted pursuant to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSection 6.04(i).
Appears in 4 contracts
Samples: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Dispositions. The Borrower shall notTransfer, and shall not or permit any of its Restricted Subsidiaries toto Transfer, consummate in one (1) transaction or a series of transactions, any DispositionEquity Interests issued by its Subsidiaries or all or any part of its or its Subsidiary’s business, exceptproperty or assets except for:
(a1) any disposition Transfers of cashsurplus, Cash Equivalents worn-out or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower Issuer and its Subsidiaries;
(2) Transfers in connection with Permitted Liens, Permitted Indebtedness, Investments, and any dividends or distributions not prohibited by this Agreement;
(3) Transfers of nonexclusive licenses for the Restricted Subsidiaries in the reasonable opinion use of the Borrower, in each case, property (including intellectual property except for the Assigned Patents) of the Issuer or its Subsidiaries in the ordinary course of business or and consistent with past practice;
(4) Transfers of cash and Cash Equivalents in the ordinary course of business and in a manner that is not prohibited by the terms of this Agreement;
(5) Permitted Intercompany Investments, provided, that such Transfers comply with the definition of Permitted Intercompany Investments and in no case may any disposition or transfer such Transfers consist of assets of the IP Hold-Co unless such Transfer is independently permitted under another clause of this Section 4.2(a);
(6) Transfers by the IP Hold-Co of nonexclusive licenses to the Assigned Patents in the normal course of their business;
(7) To the extent constituting Transfers, the Transaction occurring in connection with the Closing Date;
(8) Sales of inventory or goods (or other assets) held for sale made in the ordinary course of business;
(b9) the disposition of all or substantially all Transfers of the assets Equity Interests issued by any member of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)the Dense Air Group;
(c10) Transfers of exclusive licenses for the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 use of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of including intellectual property except for the Assigned Patents) of the Issuer or other general intangibles its Subsidiaries in the ordinary course of business and consistent with past practice; provided that consent of the Collateral Agent to exceptions to this clause (other than exclusive, world-wide licenses that are longer than three (310) years)shall not be unreasonably withheld or delayed;
(m11) salesCashless repurchases of Equity Interests of the Issuer deemed to occur upon the exercise of stock options, transfers and warrants or other dispositions securities convertible into or exchangeable for Qualified Equity Interests of Investments in joint ventures to the extent required byIssuer if such Qualified Equity Interests represent a portion of the exercise, conversion or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementsexchange price hereof;
(n12) Subject to the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination terms of the BorrowerIntercreditor Agreement, are not material to the conduct Issuer may make cash payments in lieu of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables issuing fractional shares in connection with the compromiseexercise of warrants, settlement options or collection thereof in the ordinary course of business other securities convertible into or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as exchangeable for Qualified Equity Interests of the time of such Disposition) of all such Dispositions does not exceed $5 millionIssuer; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiaryprovided that, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith unless expressly permitted by the Borrower) of the assets sold Intercreditor Agreement or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received consented to by the Borrower or Collateral Agent, no such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to payments shall be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received made pursuant to this clause (iii12) that is at that time outstanding in excess of $1,000,000 in the aggregate for the term of this Agreement; and
(but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up 13) Subject to the lesser of clauses (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if anyx) and (by) below, Transfers required to effectuate the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, Divestiture Transaction in accordance with the fair market value terms of each item the Mimosa Purchase Agreement as in effect on March 8, 2023 and as may be amended with the prior written consent of Designated Non-Cash Consideration being determined the Collateral Agent in good faith its sole discretion (which may be by email). Notwithstanding the Borrower and measured at foregoing or anything else herein to the time received and without giving effect to subsequent changes in valuecontrary, shallno Note Party shall nor shall any Note Party permit any of their Subsidiaries to, in each case, be deemed to be cash for purposes of this provision and for no other purpose.Transfer:
Appears in 4 contracts
Samples: Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.), Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.), Senior Secured Convertible Note Purchase and Guarantee Agreement (Airspan Networks Holdings Inc.)
Dispositions. The Borrower shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, consummate make any Disposition, except:
(a) any Disposition between or among the Borrower and the Restricted Subsidiaries; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6(a) [Liquidations, Mergers, Consolidations, Acquisitions] are complied with, to the extent applicable;
(b) any Disposition that constitutes a Restricted Payment permitted by Section 8.2.5 [Restricted Payments] or an Investment permitted by Section 8.2.4 [Loans and Investments];
(c) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Borrower or to a Restricted Subsidiary;
(d) the sale of extracted Coal, other mineral products or other inventory in the ordinary course of business;
(e) any Disposition of Receivables to CEI or any of its Restricted Subsidiaries (as defined under the CEI Credit Agreement) in accordance with Section 8.2.8(o) [Affiliate Transactions];
(f) any Disposition of surplus, damaged, worn-out or obsolete assets in the ordinary course of business (including the abandonment or other disposition of cashintellectual property, Cash Equivalents or Investment Grade Securities or damagedincluding seismic data and interpretations thereof, obsolete or worn out equipment or other assetsthat is, or assets in the reasonable judgment of the Borrower, no longer used economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereoftaken as whole);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the leasegranting of licenses and sublicenses by the Borrower or any Restricted Subsidiary of software or intellectual property, assignment or sub-lease of any real or personal property including seismic data and interpretations thereof, in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(ri) the granting of Permitted Liens not prohibited by this and dispositions in connection with Permitted Liens;
(j) the sale or other disposition of cash or Temporary Cash Investments or other financial instruments;
(k) the early termination or unwinding of any Swap Agreement;
(sl) Dispositions of Investments in and the property of joint ventures any Disposition; provided that (to the extent i) within 365 days following any such joint venture constitutes a Restricted Subsidiary) so long as Disposition of assets that were the aggregate fair market value (determinedsubject thereof are replaced by substitute, with respect to each such Disposition, as replacement or other assets of the time type used in the business of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as and (ii) all such substitute assets are subject to the case may beCollateral Agent’s Lien for the benefit of the Secured Parties to the extent such substitute assets are required to be part of the Collateral pursuant to this Agreement or the other Loan Documents; provided, receives consideration at the time of such Disposition at least equal to further, that the fair market value of all assets Disposed of under this clause in any given fiscal year (other than transfers of property subject to a Casualty Event or condemnation proceeding) shall not exceed $60,000,000;
(m) leases or subleases of subsurface interests in Real Property that are not part of the Pennsylvania Mining Complex and are in the reasonable judgment of the Borrower not economically practical for the Borrower or any of its Subsidiaries to mine or operate;
(n) other Dispositions; provided that the fair market value of all assets Disposed of under this clause (n) in any given fiscal year (other than transfers of property subject to a Casualty Event or condemnation proceeding) shall not exceed the greater of (i) $10,000,000 and (ii) 2.0% of CTA as determined in good faith of the end of the preceding fiscal year; and
(o) any Disposition that is not permitted by the Borrowerother clauses of this Section 8.2.7 [Dispositions], which is approved by the Required Lenders; provided that (I) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swapclauses (e), at least 75% (l) and (n), no Potential Default or Event of the consideration therefor received by Default is then in existence or will result therefrom and (II) the Borrower shall not cause or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
permit any Disposition (i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerx) of the Borrower Pennsylvania Mining Complex or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by Specified Other Asset or (y) consisting of a reduction in the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent percentage ownership of the cash Undivided Interests or Cash Equivalents received)the Specified Other Undivided Interests, except, in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposePermitted Undivided Interests Sale.
Appears in 4 contracts
Samples: Credit Agreement (CONSOL Coal Resources LP), Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Coal Resources LP)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for Transfers (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful Inventory in the business ordinary course of the Borrower and the Restricted Subsidiaries business; (b) of worn-out, surplus or obsolete Equipment that is, in the reasonable opinion judgment of the Borrower, in each case, no longer economically practicable to maintain or useful in the ordinary course of business of Borrower; (c) consisting of Permitted Liens and Permitted Investments; (d) consisting of the sale or issuance of any disposition stock, partnership, membership, or other ownership interest or other equity securities of Borrower permitted under Section 6.2 of this Agreement; (e) consisting of Borrower’s or its Subsidiaries’ use or transfer of inventory money or goods Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, including without limitation cash returns or refunds of customer payments; (f) of non-exclusive licenses for the use of the property of Borrower or other assets) held for sale its Subsidiaries in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner , and other licenses permitted pursuant to Section 7.03 part (other than clause h) of the defined Permitted Liens; (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) other Transfers not to exceed One Hundred Thousand Dollars ($5 million;
100,000) in any twelve (e12) 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 Subsidiarymonth period; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
and (h) any issuance other Transfers in which Borrower will receive cash proceeds in an amount equal to no less than seventy-five percent (75%) of such other Transfer consideration (fixed or sale of Equity Interests in, contingent) paid or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted payable to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any its Subsidiary. For the avoidance of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusivedoubt, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser none of (a) the amount sale of the cash and Cash Equivalents so received (less the cost of dispositionany Permitted Convertible Indebtedness, if any) and (b) the initial amount sale of such Designated Non-Cash Considerationany Warrant Transaction, (c) not to exceed $150 millionthe purchase of any Bond Hedge Transaction or (d) the performance by Borrower of its obligations under any Permitted Convertible Indebtedness, with any Warrant Transaction or any Bond Hedge Transaction (including the fair market value settlement or termination of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeany Bond Hedge Transaction or Warrant Transaction) shall constitute a Transfer.
Appears in 3 contracts
Samples: Loan and Security Agreement (SI-BONE, Inc.), Loan and Security Agreement (SI-BONE, Inc.), Loan and Security Agreement (SI-BONE, Inc.)
Dispositions. The Borrower shall Loan Parties will not, and shall will not permit any of its Restricted their respective Subsidiaries to, consummate make any Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Investments in the ordinary course of business;
(c) Dispositions of equipment or real property (other assetsthan real property acquired or held as inventory) in the ordinary course of business 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;
(d) Dispositions of property by any Subsidiary to the Borrower or to a Wholly-Owned Subsidiary in the ordinary course of business;
(e) Dispositions expressly permitted by Section 6.03;
(f) leases, licenses, subleases or assets sublicenses (including the provision 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 the Borrower and its Subsidiaries;
(g) Dispositions (including via abandonment, permission to lapse or dedication to the public) of intellectual property rights that are no longer used or useful in the business of the Borrower and the Restricted its Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as reasonably determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(ph) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings Restricted Payments expressly permitted by Section 6.05 and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited Investments expressly permitted by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 millionSection 6.06; and
(ti) Dispositions (including by way dispositions of any Sale and Lease-Back Transactionreal property) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received made pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSecuritization Financing.
Appears in 3 contracts
Samples: Credit Agreement (Offerpad Solutions Inc.), Credit Agreement (Offerpad Solutions Inc.), Credit Agreement (Supernova Partners Acquisition Company, Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete surplus or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course of business 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 disposition applications for registration of any intellectual property to lapse or transfer go abandoned);
(b) Dispositions of inventory or inventory, goods (or other assets) held for sale and immaterial assets in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition net proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) (A) Dispositions permitted by Section 7.04, (B) Investments permitted by Section 7.02, (C) Restricted Payments permitted by Section 7.06 and (D) Liens permitted by Section 7.01 (in each case, other than by reference to this Section 7.05 (or any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionclause under this Section 7.05));
(e) Dispositions by Holdings or any disposition 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 assets or issuance of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another such Restricted Subsidiary; provided, that any transfer from a Loan Party as applicable, shall be to another Loan Partyconsist of cash;
(f) to the extent qualifying for non-recognition under Section 1031 Dispositions of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businesscash and Cash Equivalents;
(g) (i) Dispositions of accounts receivable in connection with the lease, assignment collection or sub-lease compromise thereof and (ii) Dispositions of account receivables so long as the Net Cash Proceeds of any real sale or personal property in transfer pursuant to this clause (ii) are offered to prepay the ordinary course of businessTerm Loans pursuant to Section 2.05(b)(ii);
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing sublicensing of intellectual property or other general intangibles IP Rights in the ordinary course of business on customary terms;
(i) sales, Disposition or contributions of property (A) between Loan Parties, (B) between Restricted Subsidiaries (other than exclusiveLoan Parties), world-wide licenses (C) by Restricted Subsidiaries that are longer not Loan Parties to the Loan Parties or (D) 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 three fair market value and (32) years)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;
(j) leases, subleases, licenses, sublicenses or other occupancy arrangements of property (other than IP Rights) 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) sales, transfers and other dispositions Dispositions of Investments (including Equity Interests) in joint ventures Joint Ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) the lapse or abandonment transfer for fair value of intellectual property rights (including Equity Interests of Subsidiaries) to another Person in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material connection with a joint venture arrangement with respect to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholetransferred property; provided that such transfer is permitted under Section 7.02(j), (o) or (s);
(o) an issuance the unwinding of Equity Interests Swap Contracts permitted hereunder pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faiththeir terms;
(p) any surrender or waiver transfers of contract rights or condemned property as a result of the settlement, release, recovery on or surrender exercise of contract, tort “eminent domain” or other claims similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of any kindcondemnation 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) dispositions any Disposition of receivables any asset between or among the Borrower Parties as a substantially concurrent interim Disposition in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsa Disposition otherwise permitted pursuant to this Section 7.05;
(r) the granting sale or other transfer of Liens not prohibited by this AgreementPermitted 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 of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower Holdings or any Restricted SubsidiarySubsidiary not otherwise permitted under this Section 7.05, as the case may be, receives consideration provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at least equal to the fair market value (as determined in good faith by the Borrower) a time when no Event of the assets sold Default exists), no Event of Default shall exist or otherwise disposed of; would result from such Disposition and (2ii) except with respect to any Disposition with a purchase price in the case excess of a Permitted Asset Swap$75,000,000, at least 75% of the consideration therefor received by the Borrower to be paid to Holdings or such Restricted Subsidiary, as the case may beapplicable, is in the form shall consist of cash or Cash Equivalentscash; provided, however, that for the amount of:
purposes of this clause (is)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the BorrowerHoldings or such Restricted Subsidiary’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) of the Borrower Holdings or such Restricted Subsidiary, Subsidiary (other than liabilities that are by their terms subordinated to the Obligations, ) that are assumed by the transferee of any such assets (or are otherwise extinguished by with respect to the transferee in connection with the transactions relating to such Disposition) applicable Disposition and for which Holdings or the Borrower and all such Restricted Subsidiaries shall have been validly released,
released by all applicable creditors in writing, (iiB) any notes or other obligations or securities received by the Borrower Holdings or any such Restricted Subsidiary from such transferee that are converted by the Borrower Holdings or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), received in each case, the conversion) within one hundred and eighty (180) 180 days following the receipt thereof, and
closing of the applicable Disposition; and (iiiC) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other the Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount in respect of any cash or Cash Equivalents received all other Dispositions, not in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount excess of the cash greater of $175,000,000 and Cash Equivalents so received 2.50% of Consolidated Total Assets (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined measured as of the time received);
(t) the Disposition of any Unrestricted Subsidiary; and
(u) the Disposition of assets acquired pursuant to or in good faith by order to effectuate a Permitted Acquisition which assets are (i) obsolete or (ii) not used or useful to the Borrower core or principal business of Holdings, the Borrowers and measured 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), (c), (e), (n), (s) or (t) shall be for no less than the fair market value of such property at the time received of such Disposition and without giving (y) notwithstanding anything to the contrary in this Agreement, Holdings, the Borrowers and their Restricted Subsidiaries shall not directly or indirectly make any Investment in, or Disposition to, an Unrestricted Subsidiary in 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 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 is authorized to and shall take any actions deemed appropriate in order to effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposethe 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. The Borrower shall not, and shall not permit Make any Disposition or enter into any agreement to make any Disposition (including the sale of its Restricted Subsidiaries to, consummate any DispositionEquity Interests of any Subsidiary or Excluded Subsidiary), except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property to the extent that (i) such property is exchanged for credit against the purchase price of Equity Interests in, similar replacement property or Indebtedness or other securities of, an Unrestricted Subsidiary(ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any Subsidiary to the Borrower or to a Guarantor, (ii) Dispositions by the Borrower or any Subsidiary to an Excluded Subsidiary that is a Domestic Subsidiary, (iii) Dispositions by the Borrower or any Subsidiary to a Foreign Subsidiary so long as, if such Disposition were deemed an Investment, such transaction is permitted by Section 7.02, and (iv) Dispositions by the Borrower or any Subsidiary to a Domestic Subsidiary that is not wholly owned and is not a Guarantor;
(e) Dispositions permitted by Section 7.02 and Section 7.04;
(f) Dispositions by the Borrower and its Subsidiaries of its Restricted Subsidiaries property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date;
(lg) exclusive or non-exclusive licenses of IP Rights among the licensing or subBorrower and its Subsidiaries and non-licensing exclusive licenses of intellectual property or other general intangibles IP Rights to third parties in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)and substantially consistent with past practice;
(mh) salesSo long as no Default or Event of Default shall exist or would result from such Disposition, transfers Dispositions of any Unit to a present or future franchisee of the Borrower or any Subsidiary subject to franchise and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell royalty arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementsentered into on an arm’s length basis;
(ni) Dispositions made for charitable purposes; provided that the aggregate book value of all property Disposed of in reliance on this clause (i) from and after the Closing Date shall not exceed $10,000,000; and
(j) 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 or Event of Default shall exist or would result from such Disposition and (ii) the lapse or abandonment aggregate book value of intellectual all property rights Disposed of in reliance on this clause (i) from and after the ordinary course of business which, in the reasonable good faith determination Closing Date shall not exceed fifteen percent (15%) of the Borrower, are not material to the conduct of the business consolidated total assets of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeClosing Date.
Appears in 3 contracts
Samples: Term Loan Agreement (Panera Bread Co), Term Loan Agreement (Panera Bread Co), Credit Agreement (Panera Bread Co)
Dispositions. The Borrower shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, consummate make any Disposition, except:
(a) any Disposition between or among the Borrower and the Restricted Subsidiaries; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6(a) [Liquidations, Mergers, Consolidations, Acquisitions] are complied with, to the extent applicable;
(b) any Disposition that constitutes a Restricted Payment permitted by Section 8.2.5 [Restricted Payments] or an Investment permitted by Section 8.2.4 [Loans and Investments];
(c) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Borrower or to a Restricted Subsidiary;
(d) the sale of extracted Coal, other mineral products or other inventory in the ordinary course of business;
(e) a sale, contribution, conveyance or other disposition of cashReceivables and related assets of the type specified in the definition of “Qualified Receivables Transaction” in a Qualified Receivables Transaction permitted by Section 8.2.1(j) [Indebtedness];
(f) any Disposition of surplus, Cash Equivalents or Investment Grade Securities or damaged, worn-out or obsolete or worn out equipment assets in the ordinary course of business (including the abandonment or other assetsdisposition of intellectual property, or assets including seismic data and interpretations thereof, that is, in the reasonable judgment of the Borrower, no longer used economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereoftaken as whole);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) licenses and sublicenses by the leaseBorrower or any Restricted Subsidiary of software or intellectual property, assignment or sub-lease of any real or personal property including seismic data and interpretations thereof, in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(ri) the granting of Permitted Liens not prohibited by this and dispositions in connection with Permitted Liens;
(j) the sale or other disposition of cash or Temporary Cash Investments or other financial instruments;
(k) the early termination or unwinding of any Swap Agreement;
(sl) Dispositions any Disposition; provided that the Fair Market Value of Investments all assets Disposed of under this clause (l) in any given fiscal year (other than transfers of property subject to a Casualty Event) shall not exceed the greater of (i) $75,000,000 and (ii) 3.0% of CTA at such time;
(m) leases or subleases of subsurface interests in Real Property that are not part of the property Pennsylvania Mining Complex and are in the reasonable judgment of joint ventures the Borrower not economically practical for the Borrower or any of its Subsidiaries to mine or operate;
(n) any Disposition made pursuant to the extent Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8;
(o) any such joint venture constitutes a Restricted SubsidiaryDisposition that is not permitted by the other clauses of this Section 8.2.7 [Dispositions], which is approved by the Required Lenders;
(p) so long as the aggregate fair market value (determinedsubject to Section 5.7.2(b) [Dispositions], with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 millionany Permitted Undivided Interest Sale; and
(tq) Dispositions (including by way to the extent constituting a Disposition, any termination or elimination of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower incentive distribution rights or any Restricted Subsidiary, as the case may be, receives consideration at the time other Equity Interests issued by CCR or any of such Disposition at least equal its Subsidiaries pursuant to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed ofTake-In Transaction; and (2) except provided that in the case of a Permitted Asset Swapclauses (e) and (l), at least 75% no Potential Default or Event of Default is then in existence or will result therefrom. Notwithstanding anything to the consideration therefor received by the Borrower or such Restricted Subsidiarycontrary in this Section 8.2.7, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) none of the Required Collateral described in clause (b) or (f) of the definition of “Required Collateral” shall be permitted to be Disposed of to any liabilities Person that is not a Loan Party, (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or ii) prior to the date of such balance sheet, as determined in good faith by the Borrower) consummation of the Take-In Transaction, the Borrower shall not cause or such Restricted Subsidiary, other than liabilities that are by their terms subordinated permit CCR GP to the Obligations, that are assumed by the transferee Dispose of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received)general partnership interests in CCR, in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Nonprior to the consummation of the Take-Cash Consideration received by In Transaction, the Borrower shall not cause or such Restricted Subsidiary in such permit any Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined Undivided Interests except in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposea Permitted Undivided Interests Sale.
Appears in 3 contracts
Samples: Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.)
Dispositions. The Borrower shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, consummate make any Disposition, except:
(a) any Disposition between or among the Borrower and the Restricted Subsidiaries; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6(a) [Liquidations, Mergers, Consolidations, Acquisitions] are complied with, to the extent applicable;
(b) any Disposition that constitutes a Restricted Payment permitted by Section 8.2.5 [Restricted Payments] or an Investment permitted by Section 8.2.4 [Loans and Investments];
(c) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Borrower or to a Restricted Subsidiary;
(d) the sale of extracted Hydrocarbons, other mineral products or other inventory in the ordinary course of business;
(e) any Disposition of surplus, damaged, worn-out or obsolete assets in the ordinary course of business (including the abandonment or other disposition of cashintellectual property, Cash Equivalents or Investment Grade Securities or damagedincluding seismic data and interpretations thereof, obsolete or worn out equipment or other assetsthat is, or assets in the reasonable judgment of the Borrower, no longer used economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in taken as whole);
(f) licenses and sublicenses by the reasonable opinion of the Borrower, in each case, in the ordinary course of business Borrower or any disposition Restricted Subsidiary of software or transfer of inventory or goods (or other assets) held for sale intellectual property, including seismic data and interpretations thereof, in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(rh) the granting of Permitted Liens not prohibited by this Agreementand dispositions in connection with Permitted Liens;
(si) Dispositions the sale or other disposition of cash or Temporary Cash Investments or other financial instruments;
(j) any Disposition of Equity Interests in an Unrestricted Subsidiary;
(k) the early termination or unwinding of any Swap Agreements;
(l) any Disposition; provided that:
(i) at the time that the definitive agreement for such Disposition is entered into, no Potential Default or Event of Default is then in existence or will result therefrom;
(ii) the Borrower is in compliance, on a Pro Forma Basis, with the Leverage Maintenance Covenant and the property of joint ventures (Borrower shall deliver to the extent any such joint venture constitutes a Restricted Subsidiary) so long as Administrative Agent prior to the aggregate fair market value (determined, with respect to each such Disposition, as of the time making of such DispositionDisposition an Officer’s Certificate certifying compliance with the requirements of this clause (ii) of all and setting forth calculations in reasonable detail showing such Dispositions does not exceed $5 million; andcompliance;
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1iii) the Borrower or any the Restricted Subsidiary, as the case may be, receives consideration at the time of Subsidiary making such Disposition shall receive consideration from the Person or Persons acquiring such assets in such Disposition that is at least equal to the fair market value (as determined in good faith by the Borrower) Fair Market Value of the assets sold or otherwise disposed ofDisposed of in such Disposition; and and
(2iv) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or and the Restricted Subsidiary from such Restricted Subsidiary, as the case may be, Disposition is in the form of cash or and Temporary Cash EquivalentsInvestments; provided, provided that each of the amount of:
following will be deemed to be cash: (i1) any liabilities (liabilities, as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such any Restricted Subsidiary, Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Obligations, Obligations or the Guaranty thereof) that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which written agreement that releases the Borrower and all or such Restricted Subsidiaries have been validly released,
Subsidiary from or indemnifies the Borrower or such Restricted Subsidiary against further liability; (ii2) any securities, notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such the transferee that are are, within 180 days of the Disposition, converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalentscash, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received)received in that conversion, in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii3) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration3), up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 millionthe Threshold Amount, with the fair market value Fair Market Value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall(4) in the case of any such Disposition to CNX Midstream or any of its Subsidiaries, limited partner units of CNX Midstream (and, in calculating the 75% threshold set forth in this clause (iv), the value of such limited partner units shall be determined by reference to (A) if such units are then publicly traded on an exchange, the price per unit thereof on such exchange as of the most recently ended trading day on or prior to the date of receipt thereof by Borrower or the applicable Restricted Subsidiary and (B) if clause (A) does not apply, the Fair Market Value of such units of the date of such receipt, in each casecase without giving effect to subsequent changes in value) and (5) fixed assets and assets reasonably associated with such fixed assets (and, in calculating the 75% threshold set forth in this clause (5), the value of such assets shall be deemed the Fair Market Value thereof as of the date of receipt of such assets by the Borrower or the applicable Restricted Subsidiary without giving effect to subsequent changes in value) received in exchange for such Disposition; provided that (A) to the extent any Disposition involving consideration as contemplated by this clause (5) is made by a Loan Party, a Loan Party shall receive such assets given as consideration for such Disposition and to the extent such Disposition Disposes of Collateral, the assets received as consideration therefor shall not be considered cash or Temporary Cash Investments for purposes of the foregoing to the extent the amount of Collateral granted as Collateral pursuant to the Security Documents has been reduced by such transaction and (B) the aggregate Fair Market Value of assets received as consideration for all such Dispositions pursuant to this provision Section 8.2.7(l) in any year that is counted toward the 75% requirement pursuant to this clause (5) shall not exceed the lesser of $250,000,000 and for no other purpose.10% of the Borrowing Base then in effect measured at the time of such Disposition;
(m) any Disposition of Proved Reserves or Equity Interests of a Person that owns Proved Reserves, in accordance with Section 8.2.13 [
Appears in 3 contracts
Samples: Credit Agreement (CNX Resources Corp), Credit Agreement (CNX Resources Corp), Revolving Credit Facility (CNX Resources Corp)
Dispositions. The Borrower shall Reporting Entity will not, and shall will not permit any Restricted Subsidiary to, convey, sell, assign, transfer or otherwise dispose of (each a “Disposition”) any of its Restricted Subsidiaries toproperty or assets outside the ordinary course of business, consummate other than to any Dispositionmember of the Consolidated Group, exceptexcept for:
(a) any disposition Dispositions of cashassets and property that are (i) obsolete, Cash Equivalents or Investment Grade Securities or worn, damaged, obsolete uneconomic or worn out equipment or other assets, or assets otherwise deemed by any member of the Consolidated Group to no longer used be necessary or useful in the business operation of such member of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of Consolidated Group’s current or anticipated business or any disposition (ii) replaced by other assets or transfer property of inventory or goods (or other assets) held for sale in the ordinary course of businesssimilar suitability and value;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)cash and Cash Equivalents;
(c) Dispositions of accounts receivable (i) in connection with the making compromise or collection thereof, (ii) deemed doubtful or uncollectible in the reasonable discretion of any Restricted Payment that is permitted member of the Consolidated Group, (iii) obtained by any member of the Consolidated Group in the settlement of joint interest billing accounts, (iv) granted to be made, settle collection of accounts receivable or the sale of defaulted accounts arising in connection with the compromise or collection thereof and is made, under Section 7.05 not in connection with any financing transaction or any (v) in connection with a Permitted InvestmentReceivables Facility;
(d) any disposition other Disposition (not otherwise permitted under this Agreement) of any assets or issuance or sale of Equity Interests of any Restricted Subsidiary property; provided that after giving effect thereto, the Reporting Entity would be in any transaction or series of transactions pro forma compliance with an aggregate fair market value (as determined the covenants set forth in good faith by the Borrower) not to exceed $5 millionSection 10.2;
(e) Dispositions by any disposition member of property the Consolidated Group of all or assets or issuance any portion of securities by any Subsidiary that is not a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Material Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 leases, licenses, subleases or sublicenses by any member of the Code, or any comparable or successor provision, any exchange Consolidated Group of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal intellectual property in the ordinary course of business;
(g) Dispositions arising as a result of (i) the granting or incurrence of Liens permitted under Section 10.3 or (ii) transactions permitted under Section 10.4 (other than Section 10.4(c)) of this Agreement;
(h) any issuance Disposition or sale series of Equity Interests in, related Dispositions that does not individually or Indebtedness or other securities of, an Unrestricted Subsidiaryin the aggregate exceed $5,000,000;
(i) foreclosures on assets Dispositions constituting terminations or Dispositions expirations of assets required by Lawleases, governmental regulation or any Governmental Authority;licenses and other agreements in the ordinary course of business; and
(j) sales contributions of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles assets in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in to 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 lapse or abandonment of intellectual property rights entered into in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposebusiness.
Appears in 3 contracts
Samples: Note Purchase Agreement (Steris Corp), Note Purchase Agreement (Steris Corp), Note Purchase Agreement (Steris Corp)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashused, Cash Equivalents or Investment Grade Securities or obsolete, damaged, obsolete worn-out or worn out equipment or other assetssurplus equipment, or assets property no longer used or useful in the business conduct of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition otherwise economically impracticable to maintain, whether now owned or transfer of inventory or goods (or other assets) held for sale hereafter acquired, in the ordinary course of business;
(b) Disposition of inventory, goods held for sale and other assets and non-exclusive licenses of intellectual property (including on an intercompany basis and including allowing any issuances, registrations or any application for registration of any intellectual property that are not material to the disposition of all or substantially all business of the assets Borrower and the Restricted Subsidiaries to lapse or become abandoned), in each case in the ordinary course of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)business;
(c) Dispositions of property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment that is permitted similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to be made, and is made, under Section 7.05 or any Permitted Investmentthe purchase price of such replacement property;
(d) any disposition Dispositions of assets property (including, for the avoidance of doubt, owned Equity Interests) to the Borrower or issuance to another Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or sale of Equity Interests of any Restricted Subsidiary in any (ii) if such transaction or series of transactions with constitutes an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionInvestment, it is permitted under Section 7.06;
(e) any disposition of property Dispositions permitted by Section 7.04 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; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.06;
(f) to the extent qualifying for non-recognition under Section 1031 exclusive licenses of IP Rights in the Code, or any comparable or successor provision, any exchange ordinary course of like property (excluding any boot thereon) for use in a Similar Businessbusiness;
(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, assignment ;
(o) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar replacement property;
(p) the lease or sub-lease of any real or personal property in the ordinary course of business;
(h) business and the termination or non-renewal of any issuance real property lease not used or sale not necessary to the operations of Equity Interests in, the Borrower or Indebtedness or other securities of, an Unrestricted any Restricted Subsidiary;
(iq) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions consisting 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole;
(or) an issuance Dispositions of Equity Interests Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned Subsidiaries to the extent required by, or made pursuant to benefit plansto, employment agreements, equity plans, stock subscription buy/sell arrangements between joint venture or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established parties set forth in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or relevant joint venture arrangements and/or similar proceedings and exclusive of factoring or similar binding arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions or consignments of Investments 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 Equity Interests or Indebtedness of Unrestricted Subsidiaries;
(v) exchanges or swaps, including transactions covered by Section 1031 of the Code (or 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) within ninety (90) days of any such exchange or swap, in the case of 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 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 conveyance, the sole purpose and effect of which is to reincorporate or reorganize (i) any U.S. Subsidiary in another jurisdiction in the 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 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;
(x) Dispositions of joint ventures (to the extent any such required by, or made pursuant to customary buy/sell arrangements between the joint venture constitutes a Restricted Subsidiaryparties set forth in joint venture arrangements and Dispositions set forth on Schedule 7.05;
(y) Dispositions 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 (determined, with respect to each such Disposition, as of the time of such Disposition) of all any such Dispositions does in any fiscal year shall not exceed $5 million15,000,000; and
(tz) Dispositions not otherwise permitted under this Section 7.05, so long as (including by way i) no Default or Event of any Sale Default has occurred and Lease-Back Transactionis continuing, (ii) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value seventy-five percent (as determined in good faith by the Borrower75%) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee paid in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to therewith shall be satisfied for cash or Cash Equivalents (to the extent paid contemporaneously with consummation of the cash or Cash Equivalents received)transaction, in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received consideration paid in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the therewith shall be in an amount of the cash and Cash Equivalents so received (not less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with than the fair market value of each item the property disposed of Designated Non-Cash Consideration being (as reasonably determined in good faith by the Borrower Borrower), (iv) such transaction does not involve the Disposition of a minority Equity Interest in any Loan Party (other than the Borrower) and measured at (v) such Disposition does not involve a Disposition of receivables 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 time received 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 without giving 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 to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposethe foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc)
Dispositions. The Borrower shall notCause, and shall not permit any of its Restricted Subsidiaries to, consummate any make or suffer to exist a Disposition, except:
(a) any disposition Disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Disposition of all or substantially all of the assets of any the Borrower and its Restricted Subsidiary Subsidiaries in a manner permitted pursuant to the provisions described above under Section 7.03 (other than clause (g) thereof)6.04;
(c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment6.03;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition Disposition of property or assets or issuance of securities Equity Interests (A) by a Restricted Subsidiary of the Borrower to the Borrower or (B) by the Borrower or a Restricted Subsidiary of the Borrower to another Restricted SubsidiarySubsidiary of the Borrower; providedprovided that in the case of any event described in clause (B) where the transferee or purchaser is not a Guarantor, that then at the option of the Borrower, either (1) such disposition shall constitute a Disposition for purposes of the definition of Prepayment Asset Sale or (2) the Net Cash Proceeds thereof, when aggregated with the amount of Permitted Investments made pursuant to clauses (a) and (c) of the definition thereof, shall not exceed the dollar amount set forth in the final proviso of such definition;
(e) any transfer from a Loan Party shall be to another Loan PartyPermitted Asset Swap;
(f) to the extent qualifying for non-recognition under Section 1031 of the Codesale, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment assignment, license or sub-lease of any real real, intangible or personal property in the ordinary course of business;
(hg) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(jh) sales of accounts receivable, or participations therein, by any Restricted Subsidiary that is not a Restricted Guarantor in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)Facility;
(ki) any sale or other disposition in connection with any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries Subsidiary after the Closing DateDate (excluding property constituting Revolving Facility Primary Collateral), including Sale and Lease-Back Transactions and asset securitizations permitted under this Agreement;
(j) sales of accounts receivable in connection with the collection or compromise thereof;
(k) transfers of property subject to casualty or condemnation proceedings (including in lieu thereof) upon the receipt of the net cash proceeds therefor; provided such transfer shall constitute a Property Loss Event;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business whichbusiness, which in the reasonable good faith determination of the Borrower, Borrower or a Restricted Subsidiary are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(om) an issuance voluntary terminations of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faithHedging Obligations;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(tn) Dispositions (including by way of any Sale and Lease-Back TransactionTransactions) by a Foreign Subsidiary designed to generate foreign distributable reserves;
(o) any Disposition to the extent not involving property (when taken together with any related Disposition or series of related Dispositions) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the a fair market value in excess of $25,000,000; and
(as determined in good faith p) Dispositions (other than Dispositions by the BorrowerBorrower and the Restricted Guarantors primarily of Accounts and Inventory) of the assets sold or not otherwise disposed ofpermitted under this Section 6.05; and provided that:
(2i) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, provided that the amount of:
of (iA) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the ObligationsObligations or that are owed to the Borrower or a Restricted Subsidiary, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such of its Restricted Subsidiaries have been validly released,
released by all creditors in writing, (iiB) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) 180 days following the receipt thereofclosing of such Disposition, and
and (iiiC) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iiiC) that is at that time outstanding (but less outstanding, not to exceed the amount greater of any cash or Cash Equivalents received in connection with a subsequent sale or conversion $50,000,000 and 2.00% of or collection on such Designated Non-Cash Consideration, up to Total Assets at the lesser of (a) the amount time of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount receipt of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, shall be deemed to be cash for purposes of this provision and for no other purpose; or
(ii) any Disposition of assets or issuance or sale of Equity Interests of a Restricted Subsidiary in any transaction or series of related transactions, when taken together with all other dispositions made in reliance on this paragraph (p), does not have a fair market value in excess of 10.0% of Total Assets of the Borrower on the Closing Date, unless immediately after giving effect to such Disposition or sale of Equity Interests, Excess Cash Availability would exceed $150,000,000; and
(q) Sale and Lease-Back Transactions involving (i) real property owned on the Closing Date (other than any Mortgaged Property), (ii) property acquired not more than 180 days prior to such Sale and Lease Back Transaction for cash in an amount at least equal to the cost of such property and (iii) other property for cash consideration if the sale is treated as a Prepayment Asset Sale; provided that the consideration received by the Borrower or such Restricted Subsidiary, as the case may be, with respect to any Disposition of any property with a fair market value in excess of $25,000,000 must be at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of. To the extent any Collateral is disposed of as expressly permitted by this Section 6.05 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.
Appears in 3 contracts
Samples: Revolving Loan Credit Agreement (CDW Corp), Revolving Loan Credit Agreement (CDW Finance Corp), Revolving Loan Credit Agreement (CDW Corp)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property or other assets, or assets property determined by Borrower to no longer used or useful be necessary in the business or operations of the Borrower and the Restricted or its Subsidiaries in the reasonable opinion of the Borroweror JV Subsidiaries, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) 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 disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)ERF Program;
(c) the making Dispositions of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hd) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of equipment or non-core assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles 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 exclusive, world-wide licenses that are longer than three (3a Loan Party) years);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
(mh) salesParent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, transfers and other 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;as applicable:
(ni) the lapse or abandonment of intellectual property rights Dispositions in the ordinary course of business whichof (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 reasonable good faith determination ordinary course of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;business,
(ov) an issuance Dispositions of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business or approved by the Borrower in good faith;
and (pii) any surrender or waiver of contract contractual rights or the settlement, release, recovery on release or surrender of contract, tort contractual rights or other litigation claims of any kind;
(qincluding in tort) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;business,
(r) the granting of Liens not prohibited by this Agreement;
(svii) Dispositions of Investments in and the property of joint ventures (subject to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determinedforeclosure, with respect to each such Dispositioncasualty, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions eminent domain or condemnation proceedings (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower in lieu thereof or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly releasedsimilar proceeding),
(iiviii) Dispositions made to comply with any notes or other obligations or securities received by the Borrower order of any Governmental Authority or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent applicable requirement of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeLaw.
Appears in 3 contracts
Samples: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedabandoned, obsolete or worn out equipment or other assets, or assets no longer used useful property, whether now owned or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerhereafter acquired, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) Dispositions of inventory in the disposition ordinary course of all or substantially all business (such inventory to include, without limitation, landfill gas, carbon offset credits, electricity, solid waste, recyclables and other by-products of the assets wastestream collected by the Borrower or any of any its Restricted Subsidiary Subsidiaries and sold to, or disposed of with, third parties in a manner permitted pursuant to Section 7.03 (other than clause (g) thereofthe ordinary course of business);
(c) Dispositions of equipment or Real Estate to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment that is permitted similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to be made, and is made, under Section 7.05 or any Permitted Investmentthe purchase price of such replacement property;
(d) Dispositions of property by any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value Loan Party to another Loan Party (as determined in good faith by the Borrower) not to exceed $5 millionother than Intermediate Holdings);
(e) any disposition Dispositions consisting of property sale or assets conversion of Cash Equivalents into cash or issuance of securities by a Restricted Subsidiary other Cash Equivalents to the Borrower or extent not otherwise prohibited by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Partyterms of this Agreement;
(f) to Dispositions of motor vehicles, containers and related equipment in the extent qualifying for non-recognition under Section 1031 ordinary course of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businessbusiness;
(g) casualty events or condemnations to the leaseextent such events are deemed to constitute Dispositions and subject to the provisions of Section 2.13(b);
(h) compromise and settlement of 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 in amounts;
(i) Dispositions constituting Restricted Payments otherwise permitted pursuant to Section 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;
(j) Dispositions in the nature of 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, assignment that no such asset swap may be made at any time that a Default or subEvent 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 to be divested in reasonable detail in writing to the Administrative Agent on or before the closing date of such Permitted Acquisition, and (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-lease 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;
(n) Dispositions permitted by Section 6.04;
(o) licenses (on a non-exclusive basis with respect to intellectual property), or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(hp) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred Real Estate pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by which the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Subsidiary, in the ordinary course of business (other than exclusiveits business, world-wide licenses that are longer than three (3) years)grants any third party a right to use, lease or sublease such Real Estate;
(mq) salesthe termination of any lease, transfers and other dispositions sublease, license or sublicense of Investments in joint ventures Real Estate to which the Borrower or Subsidiary is party to the extent such Real Estate is no longer 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 lapse or abandonment of intellectual property rights by such Person in the ordinary course of business whichits 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 good faith determination judgment of the Borrower, are not material 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;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and set forth on Schedule 6.05; provided that the property of joint ventures (to the extent any Borrower shall supplement such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, Schedule as of the time Acquisition Date to add any Dispositions of such Disposition) property of all such Dispositions does not exceed $5 million; andthe Target and its subsidiaries;
(t) Financing Dispositions; or
(u) other Dispositions (including by way of any Sale and Lease-Back Transactionnot specified in this Section 6.05) with respect to which made after the Closing Date (1) the Borrower or any Restricted Subsidiaryor, as in the case may beof the Target and its subsidiaries, receives consideration at after the time of such Acquisition Date) not to exceed $125,000,000 in the aggregate in any fiscal year; provided that any Disposition at least equal pursuant to the 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 Borrower) applicable board of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes directors or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalentsgoverning body, or by their terms are required to whose determination will be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeconclusive.
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. The Borrower shall notConvey, and shall not sell, lease, transfer or otherwise dispose of (including without limitation, pursuant to a Division) (collectively, a “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, exceptother than:
(a) any disposition Transfers of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, (i) Inventory in the ordinary course of business and (ii) used, obsolete, damaged, wornout or any disposition or transfer of inventory or goods (surplus Equipment or other assets) held for sale property in the ordinary course of business;
(b) Transfers to the disposition of all Borrower or substantially all of 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 assets case of any Restricted Subsidiary Transfer by the Borrower to a Subsidiary, 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 (iii) shall not, in the case of any Transfer to a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)Subsidiary, involve material Intellectual Property Collateral;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales Transfers of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables 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 bankruptcy 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;
(f) Transfers resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceedings proceeding of, any asset of any of the Borrower or any Subsidiary;
(g) Transfers of assets (including as a result of like-kind exchanges) to the extent that (i) such assets are exchanged for credit (on a fair market value basis) against the purchase price of similar or replacement assets or (ii) such asset is Transferred for fair market ACTIVEUS 188979588v.10 value and exclusive the proceeds of factoring such Transfer are promptly applied to the purchase price of similar or similar replacement assets;
(h) Transfers 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;
(ri) (i) any termination of any lease in the granting ordinary course of Liens not prohibited by this Agreementbusiness, (ii) any expiration of any option agreement in respect of real or personal property and (iii) 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;
(sj) Dispositions the discount, write-off or Transfer of Investments in and the property accounts receivables overdue by more than thirty (30) days;
(k) any other Transfer of joint ventures assets; provided that (to the extent i) any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate Transfer shall be for fair market value value, (determined, with respect to each such Disposition, as of the time of such Dispositionii) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the total consideration therefor for any such Transfer received by the Borrower or such Restricted Subsidiary, as the case may be, and its Subsidiaries is in the form of cash or Cash Equivalents; providedPermitted Investments, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower no Default or Event of Default then exists or would result from such Restricted Subsidiary in Transfer (except if such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received Transfer is made pursuant to this clause (iii) that is an agreement entered into at that a time outstanding (but less the amount when no Default or Event of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if anyDefault exists) and (biv) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the aggregate fair market value of each item of Designated Non-Cash Consideration being determined assets subject to a Transfer made pursuant to this Section 7.1(k) shall not exceed Five Million Dollars ($5,000,000) in good faith by the Borrower and measured at the time received and without giving effect aggregate; and
(l) Transfers permitted pursuant to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSection 7.3.
Appears in 2 contracts
Samples: Loan and Security Agreement (TechTarget Inc), Loan and Security Agreement (TechTarget Inc)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for Transfers (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale Inventory in the ordinary course of business;
; (b) the disposition of all worn-out or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
obsolete or replaced Equipment; and (c) the making of any Restricted Payment that is permitted to be made, in connection with Permitted Liens and is made, under Section 7.05 or any Permitted Investment;
Investments; (d) any disposition of assets or issuance or sale non-exclusive licenses for the use of Equity Interests the property, of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property its Subsidiaries in the ordinary course of business;
; or (he) exclusive licenses for the use of the property, of Borrower or its Subsidiaries in connection with joint ventures and corporate collaborations provided each such exclusive license is specifically approved by Borrower’s Board of Directors and approved with the prior written consent of the Required Lenders (which with respect to any issuance Lender other than Oxford or sale MidCap Financial, LLC, a Delaware limited liability company (and its affiliates, herein referred to collectively as “MidCap”) shall be approved in such Lender’s reasonable discretion (other than with respect to exclusive licenses of Equity Interests inPTC124 or PTC299 in all or substantially all the worldwide geographic regions in which the Borrower retains rights to such drug or any license which would result in a “deemed liquidation” as defined in Borrower’s Certificate of Incorporation, in respect of which such approval shall be granted in such Lender’s sole discretion)). Notwithstanding the foregoing or Indebtedness any other provision of this Agreement, Borrower may Transfer all or other securities of, an Unrestricted Subsidiary;
any part of its business or property if either (i) foreclosures on assets Borrower obtains the prior written consent of the Required Lenders or Dispositions of assets (ii) Borrower repays the Term Loans in full in accordance with 2.2(d) and pays to the Lenders all amounts required by Law, governmental regulation or any Governmental Authority;
(jto be paid pursuant to such Section 2.2(d) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted such prepayment (including, without limitation, the Final Payment and the Prepayment Fee) in full prior to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection simultaneously with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time consummation of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeTransfer.
Appears in 2 contracts
Samples: Loan and Security Agreement (PTC Therapeutics, Inc.), Loan and Security Agreement (PTC Therapeutics, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition of any of its Restricted Subsidiaries to, consummate any Dispositionproperty, except:
: (a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedused, obsolete surplus, negligible, uneconomical or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of 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 the Restricted Subsidiaries property or assets and property otherwise commercially unreasonable to retain; (b) Dispositions of inventory and immaterial assets in the reasonable opinion ordinary course of business; (c) Dispositions of property to the Borrowerextent 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; (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 permitted (other than by reference to this Section 7.05) by Section 7.02, Section 7.04 and Section 7.06 and Liens permitted by Section 7.01; (f) Dispositions of cash and Cash Equivalents; (g) Dispositions of accounts receivable in each caseconnection with the collection or compromise thereof; (h) leases, subleases, licenses or sublicenses of property in the ordinary course of business or any disposition or transfer and which do not materially interfere with the business of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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 any Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions transfers of assets required by Law, governmental regulation or any Governmental Authority;property subject to Casualty Events; 156
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Dispositions in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions consisting of Investments in joint ventures to the extent required by, abandonment 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 lapse or abandonment of intellectual property rights in the ordinary course of business IP Rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its or any Restricted Subsidiaries taken as a whole;
Subsidiary or are no longer used or commercially reasonable to maintain; (ok) an issuance Dispositions of Equity Interests Investments in JV Entities to the extent required by, or made pursuant to benefit plansbuy/sell arrangements between the JV Entity parties set forth in, employment agreements, equity plans, stock subscription JV Entity arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Closing Date or shareholder agreements, stock ownership plans (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); (l) Dispositions in connection with any Permitted Tax Restructuring; (m) Dispositions of real property and other similar plans, policies, contracts or arrangements established related assets in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with relocation activities for directors, officers, members of management, employees or consultants of the compromise, settlement or collection thereof Restricted Companies; (n) Dispositions of tangible property in the ordinary course of business or in bankruptcy or similar proceedings and exclusive as part of factoring or similar arrangements;
a like-kind exchange under Section 1031 of the Code; (o) voluntary terminations of Swap Contracts; (p) [reserved]; (q) Permitted Sale Leasebacks; (r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and property or assets or issuance or sale of Equity Interests of any Restricted Subsidiary by the property of joint ventures Borrower or any Restricted Subsidiary not otherwise permitted under this Section 7.05; provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Specified Event of Default shall exist or would result from such Disposition, (ii) of all such Dispositions does not exceed $5 million; and
Disposition is made for fair market value, (t) Dispositions (including by way of any Sale and Lease-Back Transactioniii) with respect to which any Disposition (1or 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 or any Restricted Subsidiaryas of the last day of the most recently ended Test Period, as reasonably determined by the case may be, receives consideration Borrower at the time of such Disposition at least equal to Disposition, the fair market value (as determined in good faith by the Borrower) Borrower or any of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least Restricted Subsidiaries shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; providedEquivalents on a cumulative basis for all such Dispositions following the Closing Date (provided that for the purposes of this clause (r) (iii), that the following shall be deemed to be cash: (A) the greater of the principal amount of:
(i) any and carrying value of Indebtedness or other liabilities (as shown on the Borrower’s most recent consolidated balance sheet other than Indebtedness or liabilities that are subordinated in the footnotes thereto or if incurred or accrued subsequent right of payment to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet Loan Obligations) contingent or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) otherwise of the Borrower or such and its Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, Subsidiaries that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee a third party in connection with the transactions relating to such Dispositiontransfer) and for pursuant to which the Borrower and all or such Restricted Subsidiaries have been validly released,
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, (iiB) any securities, notes or other obligations or securities received by the Borrower or any such of its Restricted Subsidiary Subsidiaries from such the transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash EquivalentsHoldings, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by 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 Restricted Subsidiary in 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, taken together with all other Designated Nonvalue (determined as of the closing of the applicable Disposition for which such non-Cash Consideration received pursuant cash consideration is received) not to this clause exceed the greater of (iiix) that is $150,000,000 and (y) 20.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period at that any time outstanding (but less the amount net of any non-cash or consideration converted into cash and Cash Equivalents received in connection with a subsequent sale or conversion respect of or collection on any such Designated Nonnon-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if anyconsideration)) and (biv) the initial amount Net Cash Proceeds of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.Disposition are either 157
Appears in 2 contracts
Samples: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Dispositions. The Borrower shall notMake any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04 and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition7.06), except:
(a) any disposition Dispositions of cashsurplus, Cash Equivalents or Investment Grade Securities or damagedobsolete, obsolete used or worn out equipment property or other assetsproperty that, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion judgment of the BorrowerCompany, is no longer useful in each caseits business (but excluding any real property);
(b) Dispositions of inventory, in the ordinary course of business equipment or any disposition or transfer of inventory or goods (or other assets) held for sale accounts receivable in the ordinary course of business;
(bc) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.03 (other than clause (g7.02) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property otherwise in the ordinary course of business;
(hd) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(iA) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles defaulted receivables in the ordinary course of business and (other than exclusive, world-wide licenses that are longer than three (3B) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproceeding;
(re) licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the granting Company or any Restricted Subsidiary in the ordinary course of Liens not prohibited by this Agreementbusiness 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;
(sf) Dispositions Permitted Asset Swaps;
(A) the grant in the ordinary course of Investments 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 and the ordinary course of business;
(i) transfers of condemned property as a result of joint ventures the exercise of “eminent domain” or other similar policies or (ii) transfers of properties to the extent any that such joint venture constitutes property has been subject to a Restricted 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) so long as the aggregate fair market value (determined), with respect if immediately after giving effect to each such Disposition, as (i) no Event of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
Default has occurred and is continuing, (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1ii) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of 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 by the Borrower) of the assets sold or otherwise disposed of; and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or for such Restricted Subsidiary, as the case may be, is Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in the form of cash or Cash Equivalents; provided, that provided that, solely for purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet securities, notes, other obligations or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith assets received by the Borrower) of Company or any Restricted Subsidiary from such transferee that are converted by the Borrower Company or such Restricted SubsidiarySubsidiary 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 liabilities that are by their terms subordinated to the Obligations, contingent liabilities) that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for as a result of which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes Company or other obligations or securities received by the Borrower or any such Restricted Subsidiary is released from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, further liability; and
(iii) any Designated Non-Cash Consideration received by the Borrower Company or such any of its Restricted Subsidiary Subsidiaries in such Disposition having an Disposition; provided that (1) the aggregate fair market valuevalue 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 (iiiC) that is at that time outstanding minus (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a2) the amount of “Net Proceeds” (as defined in the Term Loan Credit Agreement) previously realized in cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of from prior Designated Non-Cash Consideration being determined 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 good faith a Similar Business;
(m) (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of 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;
(n) the unwinding or termination of any Hedging Obligations; and
(o) the sale of assets by the Borrower Company and measured at its Restricted Subsidiaries consisting of real property solely to the time received extent that such real property is not necessary for the normal conduct of operations of the Company and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes its Restricted Subsidiaries. To the extent the Required Lenders waive the provisions of this provision Section 7.05 with respect to the Disposition of any property or any property 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 for no other purposeclear 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 effect the foregoing.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Dispositions. The Borrower shall notMake any Disposition or enter into any agreement to make any Disposition (including, without limitation, with respect to Chassis and shall not permit any of its Restricted Subsidiaries toRailcars, consummate any Dispositionmaking the same available for interchange to or use by third parties), except:
(a) any disposition Dispositions constituting sales of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete surplus or worn out equipment Property or other assetsProperty which any Borrower or any Subsidiary determines, or assets in its reasonable business judgment, to be no longer used useful or useful desirable, whether now owned or hereafter acquired, in the business Ordinary Course of Business;
(b) Dispositions of assets in the Borrower Ordinary Course of Business; provided, for the avoidance of doubt, that Dispositions of Chassis and Railcars in the Ordinary Course of Business shall be limited to making the same available to third parties in accordance with the UIIA and the Restricted Subsidiaries in the reasonable opinion of the BorrowerAAR Rules, respectively, in each case, case in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower consistent with past practices and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower undertaken in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(sc) Dispositions of Investments in and Railcars and/or Chassis outside of the property Ordinary Course of joint ventures Business; provided that (i) after giving effect to the extent any such joint venture constitutes a Restricted Subsidiary) so long as Disposition the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does Total Outstandings shall not exceed $5 million; and
the Borrowing Base, (tii) Dispositions no Default or Event of Default shall have occurred and be continuing or would result from such Disposition and (including by way of any Sale and Lease-Back Transactioniii) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal and after giving effect thereto, Availability shall exceed $20,000,000;
(d) Dispositions of any Property to the fair market value extent that (as determined in good faith i) such Property is exchanged for credit against the purchase price of similar replacement Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement Property;
(e) Dispositions of Property by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent Loan Party to the date of such balance sheetany other Loan Party, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or Non-Loan Party to any other obligations or securities received by the Borrower or Non-Loan Party, (iii) any such Restricted Subsidiary from such transferee that are converted by the Borrower or Non-Loan Party to any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required Loan Party and (iv) any Loan Party to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received)any Non-Loan Party, in each case, within one hundred constituting Investments permitted by Section 7.02(d) or (l);
(f) Dispositions permitted by Section 7.04;
(g) Dispositions which constitute Investments permitted by Section 7.02;
(h) Dispositions which constitute non-exclusive licenses of IP Rights in the Ordinary Course of Business;
(i) Dispositions (other than Dispositions of Railcars) by Borrowers and eighty Subsidiaries of Property pursuant to sale-leaseback transactions, provided that (180i) days following no Default or Event of Default shall have occurred and be continuing or would result from such Disposition and (ii) the receipt thereof, book value of all Property so Disposed of shall not exceed (A) $10,000,000 in any Fiscal Year and (B) $25,000,000 from and after the Closing Date; and
(iiij) any Designated Non-Cash Consideration received Dispositions by Borrowers and Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the Borrower time of such Disposition, no Default or such Restricted Subsidiary in Event of Default shall exist or would result from such Disposition having an and (ii) the aggregate fair market value, taken together with book value of all other Designated Non-Cash Consideration received pursuant to Property Disposed of in reliance on this clause (iiii) that is at that time outstanding (but less the amount of in any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) Fiscal Year shall not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose5,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Pacer International Inc), Credit Agreement (Pacer International Inc)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property or other assets, or assets property no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borroweror its Subsidiaries, in each casewhether now or hereafter owned or leased, in the ordinary course of business or any disposition or transfer of such Credit Party;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of equipment, software or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are reasonably promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) Dispositions of property by any disposition of assets Subsidiary to the Borrower or issuance to a Subsidiary Guarantor or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not Borrower to exceed $5 milliona Subsidiary Guarantor;
(e) any disposition of property Dispositions in connection with transactions permitted by Section 6.4 or assets constituting Investments permitted by Section 6.3 or issuance of securities constituting Restricted Payments permitted by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 6.6;
(f) to cancellations of any intercompany Indebtedness among the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessCredit Parties;
(g) the lease, assignment or sub-lease licensing of any real or personal intellectual property to third Persons on customary terms in the ordinary course of business;
(hi) any issuance the sale, lease, sub-lease, license, sub-license or sale consignment of Equity Interests inpersonal property of the Borrower or its Subsidiaries in the ordinary course of business, (ii) leases or Indebtedness subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof and (iii) sublicense on customary terms to third parties of the programming rights which the Borrower or other securities of, an Unrestricted Subsidiaryits Subsidiaries obtained through licenses of such rights entered into in the ordinary course of business;
(i) foreclosures on assets the settlement or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales write-off of accounts receivable, receivable or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way sale of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles overdue accounts receivable for collection in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)consistent with past practice;
(mj) salessale, transfers exchange or other disposition of cash and other dispositions Cash Equivalents not prohibited by any 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 arrangementsLoan Documents;
(nk) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of Dispositions by the Borrower and its Restricted Subsidiaries taken as a whole;
not otherwise permitted under this Section 6.5; provided, (oi) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all such Dispositions does property Disposed of in reliance on this clause (k) shall not exceed $5 million; and
(t) Dispositions (including by way of 1,250,000 in any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; fiscal year and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by purchase price for such asset shall be paid to the Borrower or such Restricted Subsidiary, as the case may be, is Subsidiary in the form of cash or Cash Equivalents; and
(l) Dispositions related to Permitted Sale-Leaseback Transactions; provided, however, that the amount of:
any Disposition pursuant to subsection 6.5(a) through subsection 6.5(k) (iother than subsection 6.5(d) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent and subsection 6.5(e) except to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or extent relating to Investments in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, Persons other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(iiits Subsidiaries) shall in any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to event be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value; provided, taken together with all other Designated Non-Cash Consideration received pursuant to further, that in the event any Disposition otherwise permitted under this clause (iii) that is at that time outstanding (but Section 6.5 shall consist of a Disposition of Stock and Stock Equivalents in a Subsidiary, such Disposition shall in no event be of less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount than 100% of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower Stock and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeStock Equivalents.
Appears in 2 contracts
Samples: Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.)
Dispositions. The Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries to, consummate directly or indirectly, dispose of (whether in one or a series of transactions) any Dispositionassets or property (including the Stock of any Subsidiary of any Loan Party, exceptwhether in a public or private offering or otherwise, and accounts and notes receivable, with or without recourse), or, directly or indirectly, issue, sell or otherwise transfer or provide a controlling, management or other interest in, any Stock of any Loan Party or any of its Subsidiaries, except for:
(a) any disposition Dispositions of cash(i) inventory, Cash Equivalents goods or Investment Grade Securities services or damaged(ii) worn-out, obsolete obsolete, damaged or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowersurplus equipment, in each casecase of clause (i) and (ii), in the ordinary course Ordinary Course of business Business on terms that are no less favorable to the applicable Loan Party or any disposition or transfer Subsidiary than those which might be obtained from a third party not an Affiliate of inventory or goods (or other assets) held for sale in the ordinary course of businessany Loan Party;
(b) (i) Dispositions of cash equivalents in the disposition Ordinary Course of all or substantially all of the assets Business made to a Person that is not an Affiliate of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 Loan Party and (ii) conversions of cash equivalents into cash or other than clause (g) thereof)cash equivalents;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted InvestmentLicenses;
(d) any disposition of assets or issuance or the sale of Equity Interests the Stock of any Restricted Subsidiary in of the Borrower to the Borrower or any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionLoan Party;
(e) the transfer of any disposition of property or assets or issuance of securities property by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be (other than the Borrower) to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of past due accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles receivable in the ordinary course of business (other than exclusiveincluding any discount and/or forgiveness thereof) or, world-wide licenses that are longer than three (3) years)in the case of accounts receivable in default, in connection with the collection or compromise thereof and in any event, not involving any securitization or factoring thereof, in the Ordinary Course of Business in an aggregate amount not to exceed the amount set forth in the Approved Budget;
(mg) sales(i) any termination of any lease, transfers (ii) any expiration of any option agreement in respect of real or personal property, (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) and other dispositions (iv) any lease or sublease of Investments real property not useful in joint ventures to the extent required byconduct of the business of the Borrower or its Subsidiaries, or made pursuant toin the case of each of the foregoing clauses (i) through (iv), customary buy/sell arrangements between in the joint venture parties set forth in joint venture arrangements and similar binding arrangementsOrdinary Course of Business;
(nh) the lapse or unwinding of any Swap Contract permitted by Section 6.7 pursuant to its terms;
(i) Dispositions in connection with any transaction permitted under Section 6.7;
(j) subject to the prior written consent of the Required Lenders, dispositions in the Ordinary Course of Business consisting of the abandonment of intellectual property rights in the ordinary course of business (other than Material Intellectual Property) which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Loan Parties and the Subsidiaries; and
(k) Dispositions (including any Approved Sale) not otherwise permitted hereunder that are made for Fair Market Value (other than any assets that are material to the business or operations of the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole;
, including Material Intellectual Property); provided that (oi) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of any such Disposition at least equal to the fair market value Disposition, no Default or Event of Default shall exist or shall result from such Disposition, (as determined in good faith by the Borrowerii) of the assets sold or otherwise disposed of; [reserved], and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with an Approved Sale, the transactions relating to such Disposition) and for which the Borrower and aggregate Fair Market Value of all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received assets so sold by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash EquivalentsLoan Parties and their Subsidiaries, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received)together, in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) shall not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose250,000.
Appears in 2 contracts
Samples: Multi Draw Senior Secured Super Priority Priming Debtor in Possession Credit Agreement and Guaranty (Sientra, Inc.), Multi Draw Senior Secured Super Priority Priming Debtor in Possession Credit Agreement and Guaranty (Sientra, Inc.)
Dispositions. The Borrower shall notMake any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04 and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition7.06), except:
(a) any disposition Dispositions of cashsurplus, Cash Equivalents or Investment Grade Securities or damagedobsolete, obsolete used or worn out equipment property or other assetsproperty that, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion judgment of the Borrower, is no longer useful in each caseits business (but excluding any real property);
(b) Dispositions of inventory, in the ordinary course of business equipment or any disposition or transfer of inventory or goods (or other assets) held for sale accounts receivable in the ordinary course of business;
(bc) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.03 (other than clause (g7.02) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property otherwise in the ordinary course of business;
(hd) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(iA) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles defaulted receivables in the ordinary course of business and (other than exclusive, world-wide licenses that are longer than three (3B) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproceeding;
(re) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in licensing, sublicensing and the cross-licensing arrangements involving any technology or other intellectual property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted SubsidiarySubsidiary 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 case may belessor, receives 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 at the time of 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 by the Borrower) of the assets sold or otherwise disposed of; faith, and (2C) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or for such Restricted Subsidiary, as the case may be, is Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in the form of cash or Cash Equivalents; provided, that provided that, solely for purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(i1) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetsecurities, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheetnotes, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities assets received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash EquivalentsEquivalents within 180 days of the receipt thereof, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received)received in that conversion;
(2) any reclamation, in each case, within one hundred 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 eighty (180) days following as a result of which the receipt thereof, Borrower or such Restricted Subsidiary is released from further liability; and
(iii3) any Designated Non-Cash Consideration received by the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Disposition having an Disposition; provided that (1) the aggregate fair market valuevalue 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 (iii3) that is at that time outstanding minus (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a2) the amount of the Net Proceeds previously realized in cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of from prior Designated Non-Cash Consideration being determined 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 good faith 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, or surrender of contractual rights or other litigation claims in the ordinary course of 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;
(n) the unwinding or termination of any Hedging Obligations; and
(o) the sale of assets by the Borrower and measured at its Restricted Subsidiaries consisting of real property solely to the time received extent that (i) such Real Property is not necessary for the normal conduct of operations of the Borrower and without giving effect to subsequent changes its Restricted Subsidiaries and (ii) the Net Proceeds therefrom are applied in value, shall, in each case, be deemed to be cash for purposes accordance with Section 2.03(b). To the extent the Required Lenders waive the provisions of this provision Section 7.05 with respect to the Disposition of any property or any property 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 for no other purposeclear 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).
Appears in 2 contracts
Samples: Credit Agreement (Contura Energy, Inc.), Credit Agreement (Contura Energy, Inc.)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for Transfers (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful Inventory in the business ordinary course of the Borrower and the Restricted Subsidiaries business; (b) of worn-out or obsolete Equipment that is, in the reasonable opinion judgment of the Borrower, in each case, no longer economically practicable to maintain or useful in the ordinary course of business of Borrower; (c) consisting of Permitted Liens and Permitted Investments; (d) of non-exclusive licenses for the use of the property of Borrower or any disposition or transfer of inventory or goods (or other assets) held for sale its Subsidiaries in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
; (e) any disposition sublease of real property or assets or issuance by Borrower not constituting Indebtedness and not entered into as part of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiarysale leaseback transaction; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 consisting of the Code, Borrower’s use or any comparable transfer of money or successor provision, any exchange of like property (excluding any boot thereon) for use Cash Equivalents in a Similar Business;
manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (g) the lease, assignment or sub-lease sales of assets and Accounts by any real or personal property SPV that are in the ordinary course of SPV’s business;
, upon fair and reasonable terms that would otherwise be obtained in an arm’s length transaction; (h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
Permitted SPV Parent Transfers; (i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or property of Borrower in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate during any Governmental Authority;
fiscal year of Borrower; and (j) sales of accounts receivableAccounts, so long as (1) such Accounts are sold to a SPV or participations thereinState Subsidiary for an amount equal to at least seventy-five percent (75.0%) of the face amount of such Account, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k2) any financing transaction (excluding by way no Event of a Sale Default has occurred, is continuing or could result from the sale of such Account, and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) salesthe proceeds from the sale of such Accounts are received in cash by Borrower concurrently with such sale. Each sale of an Account shall be made free and clear of Bank’s Lien, transfers so long as, and other dispositions of Investments only if, such sale is made 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection compliance with the compromise, settlement or collection thereof in the ordinary course requirements of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(rSection 7.1(j) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeabove.
Appears in 2 contracts
Samples: Loan and Security Agreement (Moneylion Inc.), Loan and Security Agreement (Fusion Acquisition Corp.)
Dispositions. The Borrower shall Borrowers will not, and shall will not permit any of its Restricted their respective Subsidiaries to, consummate Dispose of any Disposition, exceptof their respective assets except for:
(a) any disposition a Disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business the Borrowers’ business; or
(b) the sale or any disposition or transfer lease of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 a Permitted Asset or any Permitted InvestmentStock Sale;
(d) any disposition the use or transfer of assets money, cash or issuance or sale of Equity Interests of any Restricted Subsidiary Cash Equivalents in any transaction or series of transactions with an aggregate fair market value (as determined in good faith a manner that is not prohibited by the Borrower) not to exceed $5 millionterms of this Agreement or the other Loan Documents;
(e) any disposition of property or assets or issuance of securities by the licensing and sublicensing on a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 exclusive basis of the Codepatents, or any comparable or successor provisiontrademarks, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the leasecopyrights, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business whichbusiness, in and the reasonable good faith determination leasing and subleasing of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeany other property;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(rf) the granting of Liens not prohibited Lxxxx permitted hereunder and the other transactions permitted by this AgreementSection 7.1;
(sg) Dispositions of Investments in any Casualty Event and the Disposition of any property subject thereto;
(i) the abandonment, cancellation or lapse of issued patents, registered trademarks and other registered intellectual property of joint ventures (a Borrower or Subsidiary thereof to the extent any extent, in such joint venture constitutes a Restricted Subsidiary) Borrower’s reasonable business judgment, not economically desirable in the conduct of such Bxxxxxxx’s business or so long as such lapse is not materially adverse to the aggregate fair market value (determined, with respect to each such Disposition, as interests of the time Lenders and (ii) the expiration of such Disposition) of all such Dispositions does not exceed $5 millionpatents in accordance with their statutory terms; and
(ti) Dispositions (including the unwinding or terminating of hedging arrangements or transactions contemplated by way any Swap Agreement which are not prohibited hereunder. To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of any Sale and Lease-Back Transaction) this Section 7.4 with respect to which (1) the Borrower sale of any Collateral, or any Restricted SubsidiaryCollateral is sold as permitted by this Section 7.4, as such Collateral (unless sold to a Borrower) shall be sold automatically free and clear of the case may beLiens created by the Collateral Documents and, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) expense of the assets sold or otherwise disposed of; and (2) except Borrowers, the Administrative Agent shall take all reasonable actions any Borrower reasonably requests in writing in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 2 contracts
Samples: Loan Agreement (RCM Technologies, Inc.), Loan Agreement (RCM Technologies, Inc.)
Dispositions. The None of Holdings, the Borrower shall not, and shall not permit or any of its Restricted Subsidiaries to, consummate shall make any Disposition, except:
(a) any disposition (i) Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of Holdings, 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 Holdings, the Borrower and the its Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in outside the ordinary course of business;
(b) Dispositions of inventory, goods held for sale in the disposition ordinary course of all business and immaterial assets (including allowing any registrations or substantially all of the assets any applications for registration of any Restricted Subsidiary in a manner permitted pursuant intellectual property to Section 7.03 (other than clause (glapse or go abandoned) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(hc) Dispositions of property to Holdings, the Borrower or any issuance of its Restricted Subsidiaries; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or sale of Equity Interests in(ii) if such transaction constitutes an Investment, or Indebtedness or other securities of, an Unrestricted Subsidiarysuch transaction is permitted under Section 7.02;
(id) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authoritycash and Cash Equivalents;
(je) sales leases, subleases, licenses or sublicenses (including the provision of accounts receivable, software or participations thereinthe licensing of other intellectual property rights), in connection each case in the ordinary course of business and which do not materially interfere with the business of Holdings, the Borrower and its Restricted Subsidiaries, taken as a whole;
(f) transfers of property subject to Casualty Events;
(g) Dispositions of property not otherwise permitted under this Section 7.05 in an aggregate amount during the term of this Agreement not to exceed the greater of $125,000,000 and 15% of Total Assets as of the date of such Disposition; provided that (i) at the time of such Disposition (other than any Receivables Facility permitted such Disposition made pursuant to be incurred a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition; (ii) other than with respect to any Dispositions pursuant to this clause (g) in an aggregate amount during the term of this Agreement not to exceed $50,000,000, the Total Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 7.02(b)(196.01(a) or (b);
, as applicable (kor, if no Test Period has passed, as of the last four quarters ended), as if such Disposition had been made on the last day of such four quarter period shall be no greater than the Total Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) any financing transaction or (excluding by way b), as applicable (or, if no Test Period has passed, as of a Sale the last four quarters ended) and Lease-Back Transaction(iii) with respect to property built or acquired by any Disposition pursuant to this clause (g) for a purchase price in excess of $10,000,000, Holdings, the Borrower or any of its Restricted Subsidiaries after shall receive not less than 75% of such consideration in the Closing Dateform 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 Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x)(x) and (ii), (x), (y) (solely to the extent such Liens under such clause (y) are Liens on Collateral that are junior to the Liens securing the Obligations and subject to a Junior Lien Intercreditor Agreement) and (bb); provided, however, that for the purposes of this clause (g)(iii), the following shall be deemed to be cash: (A) any liabilities of Holdings, the Borrower 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, the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing and (B) any securities received by Holdings, the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred eighty (180) days following the closing of the applicable Disposition;
(lh) Dispositions or discounts without recourse of accounts receivable in connection with the licensing compromise or sub-licensing of intellectual property or other general intangibles collection thereof in the ordinary course of business and sales of assets received by Holdings, the Borrower or any of its Restricted Subsidiaries from Persons other than Loan Parties upon foreclosure on a Lien;
(i) any exchange of assets for assets or services (other than exclusivecurrent assets) related to a similar business of comparable or greater market value or usefulness to the business of Holdings, world-wide licenses that are longer than three (3) years)the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(mj) sales, transfers and other dispositions Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) the unwinding of any Swap Contracts;
(l) Dispositions of any Equity Interests or interests in any joint venture entity not constituting a Subsidiary in accordance with the applicable joint venture agreement or arrangement relating thereto;
(m) any Disposition of assets in connection with a Sale/Leaseback Transaction permitted by Section 7.14;
(n) the lapse or abandonment Disposition of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeany Unrestricted Subsidiary;
(o) an issuance of Equity Interests pursuant to benefit planstransactions permitted by Section 7.02, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans 7.04 and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith7.06;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims Disposition of any kindasset between or among Holdings, the Borrower and/or its Restricted Subsidiaries as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to this Section 7.05;
(q) dispositions any of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementstransactions described on Schedule 7.05;
(r) the granting sale (without recourse) of Liens not prohibited by this Agreement;receivables (and related assets) pursuant to factoring arrangements entered into in the ordinary course of business; and
(s) Dispositions the Disposition of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Leasenon-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value core assets (as determined in good faith by the Borrower) acquired as part of the assets sold or otherwise disposed of; and (2) except any Permitted Acquisition in the case of a Permitted Asset Swap, at least 75an aggregate amount not to exceed 50% of the consideration therefor received by the Borrower or paid for such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsPermitted Acquisition; provided, provided that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee Disposition of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received property pursuant to this clause (iiiSection 7.05(g) that is at that time outstanding (but shall be for no less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with than the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured such property at the time received 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 without giving 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 to subsequent changes the foregoing upon request of any Loan Party in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeaccordance with Section 9.08.
Appears in 2 contracts
Samples: Credit Agreement (Res Care Inc /Ky/), Credit Agreement (Res Care Inc /Ky/)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, license, transfer, assign, or otherwise dispose of (collectively a “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for Transfers (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale Inventory in the ordinary course of business;
; (b) the disposition of all worn-out, obsolete or substantially all surplus Equipment; (c) in connection with Permitted Liens, Permitted Investments and Permitted Dissolutions; (d) consisting of the assets sale or issuance of any Restricted Subsidiary stock of Borrower permitted under Section 7.2 of this Agreement; (e) consisting of Borrower’s use or transfer of money or Cash Equivalents in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith not prohibited by the Borrower) not to exceed $5 million;
(e) any disposition terms of property this Agreement 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“CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.” other Loan Documents; provided, that any transfer from a Loan Party shall be to another Loan Party;
and (f) to the extent qualifying for of non-recognition under Section 1031 exclusive licenses for the use of the Code, property of Borrower or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property its Subsidiaries in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vericel Corp), Loan and Security Agreement (Vericel Corp)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower Company and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Subsidiaries;
(b) Dispositions of inventory or goods (or other assets) held for sale and immaterial assets in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition Dispositions of assets property (i) to the Company or issuance to a Restricted Subsidiary; provided that if the transferor of such property is a Guarantor or sale 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 Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not Foreign Subsidiaries to exceed $5 millionother Foreign Subsidiaries;
(e) any disposition of property or assets or issuance of securities Dispositions permitted by a Restricted Subsidiary to the Borrower or Sections 7.04 and 7.06 and Liens permitted by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.01;
(f) to the extent qualifying for non-recognition under Section 1031 Dispositions of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businesscash and Cash Equivalents;
(g) Dispositions of accounts receivable in connection with the lease, assignment collection or sub-lease of any real or personal property in the ordinary course of businesscompromise thereof;
(h) any issuance leases, subleases, licenses or sale sublicenses (including the provision of Equity Interests in, or Indebtedness or other securities of, software under an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations thereinopen source license), in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles each case in the ordinary course of business (other than exclusiveand which do not materially interfere with the business of Holdings, world-wide licenses that are longer than three (3) years)the Company and the Restricted Subsidiaries;
(mi) sales, transfers and other dispositions of Investments in joint ventures property 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 arrangementssubject to Casualty Events;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(sj) Dispositions of Investments in and the property of joint ventures not otherwise permitted under this Section 7.05; provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at least equal to a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) the fair market aggregate book value of all property Disposed of in reliance on this clause (as determined j) shall not exceed $300,000,000 in good faith by the Borrower) of the assets sold or otherwise disposed of; aggregate and (2iii) except with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $25,000,000, the case of Company or a Permitted Asset Swap, at least Restricted Subsidiary shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents (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 Section 7.01(s) and clauses (i) and (ii) of Section 7.01(u)); provided, however, that for the amount of:
purposes of this clause (iiii), each of the following shall be deemed to be cash: (A) any liabilities (as shown on the BorrowerCompany’s or such Restricted Subsidiary’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) of the Borrower 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 of any such assets (or are otherwise extinguished by with respect to the transferee in connection with the transactions relating to such Disposition) applicable Disposition and for which the Borrower Company and all such of the Restricted Subsidiaries shall have been validly released,
released by all applicable creditors in writing and (iiB) any notes or other obligations or securities received by the Borrower Company or any such Restricted Subsidiary from such transferee that are converted by the Borrower Company or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) 180 days following the receipt thereofclosing 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
(iiim) 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 Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received of any property pursuant to this clause Section 7.05(j), (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if anyk) and (bm) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with shall be for no less than the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured such property at the time received 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 Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents without giving further action by the Administrative Agent, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposethe foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Readers Digest Association Inc), Credit Agreement (Direct Holdings Libraries Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) Dispositions of obsolete, worn out, used or surplus property (other than any disposition Hotel Real Property), whether now owned or hereafter acquired, in the ordinary course of cashbusiness 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 inventory, Cash Equivalents or Investment Grade Securities or damagedequipment, obsolete or worn out equipment accounts receivables or other assetscurrent assets in the ordinary course of 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;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or assets (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) 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 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 in the reasonable opinion of the BorrowerSubsidiaries, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(biii) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be madesurrender, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on release or surrender of contract, tort or other claims of any kindclaims;
(qi) dispositions transfers of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproperty subject to Casualty Events;
(r) the granting of Liens not prohibited by this Agreement;
(sj) Dispositions of Investments in and the property of joint ventures property; provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of 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 Event of Default shall have occurred and been continuing or would result from such Disposition) of all such Dispositions does not exceed $5 million; and
, (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1ii) the Borrower or any Restricted Subsidiary, as the case may be, receives 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) of the assets sold Borrower or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least any Restricted Subsidiary shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents (in each case, free and clear of all Liens at the time received); provided, however, that for the amount of:
purposes of this clause (iiii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) 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 of any such assets (with respect to the applicable Disposition or are otherwise extinguished by the transferee cancelled or terminated in connection with the transactions relating to transaction with such Disposition) and transferee, and, in each case, for which the Borrower and all such Restricted Subsidiaries shall have been validly released,
released by all applicable creditors in writing, (iiB) any notes or other obligations or securities received by the Borrower or any such the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) 180 days following the receipt thereofclosing of the applicable Disposition, and
and (iiiC) any Designated Nonaggregate non-Cash Consideration cash consideration received by the Borrower or such the applicable Restricted Subsidiary in such Disposition having an aggregate fair market valuevalue (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, taken together with all other Designated Non-Cash Consideration received pursuant to 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 is at that time outstanding would be permitted by Section 7.07 and (but less 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(j) in the aggregate exceeds $5,000,000 in any cash or Cash Equivalents received 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;
(k) Dispositions of non-core assets acquired in connection with a subsequent sale Permitted Acquisition or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of other Investments; provided that (ai) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial aggregate amount of such Designated Non-Cash Consideration) sales shall not to exceed $150 million, with 25% of the fair market value of the acquired entity or business and (ii) each item of Designated Nonsuch sale is in an arm’s-Cash Consideration being length transaction and the Borrower or Restricted Subsidiary receives at least fair market value in exchange therefor (as such fair market value may be determined in good faith by the Borrower);
(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 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 comparable or greater value or usefulness to the business of the Borrower and measured at its Subsidiaries as a whole, as determined in good faith by the time received management of the Borrower;
(o) any 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 customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and without giving effect to subsequent changes similar binding arrangements;
(q) the unwinding or settlement of any Swap Contract;
(r) the lapse or abandonment in value, shall, the ordinary course of business of any registrations or applications for registration of any IP Rights not necessary in each case, be deemed the conduct of the business of the Borrower and its Restricted Subsidiaries;
(s) Dispositions required to be cash for purposes made by a Governmental Authority; and
(t) sales of assets received by the Company or any of its Restricted Subsidiaries upon the foreclosure on a Lien. To the extent any Collateral is Disposed of as permitted by this provision Section 7.05 to any Person other than a Loan Party, such Collateral shall automatically be sold free and for no other purposeclear 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 to effect the foregoing within such time period as may be required to consummate the applicable transaction.
Appears in 2 contracts
Samples: Credit Agreement (Playa Hotels & Resorts N.V.), Credit Agreement (Playa Hotels & Resorts N.V.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Permitted Transfers;
(b) Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are reasonably promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition Dispositions permitted by Section 7.04 (other than solely in reliance on clause (f) thereof) and, to the extent constituting a Disposition, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06 and (iii) Equity Issuances and other equity issuances, in each case, of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) Holdings not to exceed $5 millionexpressly prohibited herein;
(e) any disposition non-exclusive licenses of trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses and other intellectual property or assets or issuance rights in the ordinary course of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Partybusiness and substantially consistent with past practice;
(f) the lapse of registered patents, trademarks and other Intellectual Property to the extent qualifying for non-recognition under Section 1031 not material in the conduct of its business and so long as such lapse is not materially adverse to the interests of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessAdministrative Agent and the Lenders;
(g) the leasediscount, assignment write-off or sub-lease Disposition of accounts receivable overdue by more than one hundred twenty (120) days or the sale of any real or personal property such accounts receivable for the purpose of collection to any collection agency, in each case in the ordinary course of business;
(h) the unwinding of any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted SubsidiarySwap Contract so long as the Swap Termination Value associated therewith does not exceed $5,000,000;
(i) foreclosures on other Dispositions so long as (i) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (ii) [reserved], (iii) such transaction does not involve the sale or other disposition of a minority Equity Interests in any Subsidiary, (iv) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this Section 7.05, and (v) the aggregate net book value of all of the assets sold or Dispositions otherwise disposed of assets required by Law, governmental regulation or the Loan Parties and their Subsidiaries in all such transactions in any Governmental Authority;fiscal year of Holdings shall not exceed $10,000,000; and
(j) sales sales, transfers or other dispositions of accounts receivable, or participations therein, receivable in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles receivables factoring arrangements in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) yearspermitted to be assumed pursuant to Section 7.02(m);
(m) sales; provided, transfers and other dispositions of Investments that, in joint ventures to no event shall the extent required byBorrower or any Subsidiary Dispose of, or made pursuant toexclusively license, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
to a Person that is not a Loan Party (nincluding any transfer from a Loan Party to a non-Loan Party) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination IP Rights of the Borrower, Borrower and its Subsidiaries that are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value whole (as reasonably determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 2 contracts
Samples: Credit Agreement (Digital Turbine, Inc.), Credit Agreement (Digital Turbine, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition (other than as part of its Restricted Subsidiaries to, consummate any Disposition, or in connection with the Transactions) except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete worn out, used or worn out equipment surplus property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion Subsidiaries;
(b) Dispositions of the Borrower, in each case, inventory and goods held for sale in the ordinary course of business or any disposition or transfer of inventory or goods and immaterial assets (or other assetsconsidered in the aggregate) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or substantially all of the assets of any a Restricted Subsidiary in a manner permitted Subsidiary;
(e) Dispositions constituting Permitted Investments (other than pursuant to clause (d) thereof) or otherwise permitted by Section 7.03 7.06, Dispositions permitted by Section 7.04 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is and Liens permitted to be made, and is made, under by Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party7.01;
(f) Dispositions of property pursuant to the extent qualifying for nonSale and Lease-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessBack Transactions;
(g) the leaseDispositions of cash, assignment or sub-lease of any real or personal property in the ordinary course of businessCash Equivalents and Investment Grade Securities;
(h) any issuance leases, subleases, service agreements, product sales, licenses or sale sublicenses (including agreements involving the provision of Equity Interests insoftware in copy or as a service, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations thereinand related data and services), in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles each case in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are which do not material to the conduct of materially interfere with the business of the Borrower and its the Restricted Subsidiaries Subsidiaries, taken as a whole;
(oi) an issuance transfers of Equity Interests pursuant property subject to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faithCasualty Events;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(sj) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate property, whether tangible or intangible, for fair market value value; provided that (determined, with respect to each such Disposition, as of the time of such Dispositioni) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at least equal 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 fair market value (as determined in good faith by the Borrower) of the assets sold Borrower or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least any Restricted Subsidiary shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that for the amount of:
purposes of this clause (iii), 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 consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) of the Borrower or such Restricted Subsidiary, other than liabilities Subsidiary that are by their terms subordinated to the Obligations, that are (i) assumed by the transferee of any such assets with respect to the applicable Disposition or (or ii) that are otherwise extinguished by the transferee cancelled or terminated in connection with the transactions relating to transaction with such Disposition) and transferee and, in each case, for which the Borrower and all such of the Restricted Subsidiaries (to the extent previously liable thereunder) shall have been validly released,
released by all applicable creditors in writing, (iiB) any securities, notes or other obligations or securities assets received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) days following the receipt thereofclosing of the applicable Disposition, and
(iiiC) 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 by the 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 (iiiD) that is at that time outstanding outstanding, not in excess (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount as of the cash and Cash Equivalents so received (less date of the cost of disposition, if any) and (b) the initial amount receipt of such Designated Non-Cash Consideration) not to exceed of the greater of $150 million50,000,000 and 2.50% of Total Assets, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and 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, shallor 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 casecase 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 contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary course of business; and
(t) the issuance of directors’ qualifying shares and shares issued to foreign 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, 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 shall be authorized to take any actions deemed appropriate in order to be cash for purposes of this provision and for no other purposeeffect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (ATD Corp), Credit Agreement (American Tire Distributors Holdings, Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course of business or any disposition or transfer and Dispositions of property no longer used in the conduct of the business of the Borrower and its Subsidiaries;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) Dispositions of property by any disposition Subsidiary to the Borrower or to a Subsidiary; provided, that if the transferor of assets such property is a Guarantor (i) the transferee thereof must either be the Borrower or issuance a Guarantor or sale of Equity Interests of any Restricted Subsidiary in any (ii) to the extent such transaction or series of transactions with constitutes an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionInvestment, such transaction is permitted under Section 7.02;
(e) any disposition Dispositions permitted by Sections 7.04 and 7.06 (solely with respect to reissuances of property or assets or issuance Equity Interests of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Partytreasury stock of Holdings);
(f) Dispositions by the Borrower and its Subsidiaries of property pursuant to sale-leaseback transactions; provided, that (i) the fair market value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date and (ii) the purchase price for such property shall be paid to the extent qualifying Borrower or such Subsidiary for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businessnot less than 75% cash consideration;
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the lease, assignment collection or sub-lease compromise thereof;
(i) licensing or sublicensing of any real or personal IP Rights in the ordinary course of business on customary terms;
(j) intercompany sales of property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way leases, subleases, licenses or sublicenses of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business and which do not materially interfere with the business of Holdings and its Subsidiaries;
(other than exclusive, world-wide licenses that are longer than three (3l) years);transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event; and
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of Dispositions by the Borrower and its Restricted Subsidiaries taken as a whole;
not otherwise permitted under this Section 7.05; provided, that (oi) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of 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 such Dispositions does property Disposed of in reliance on this clause (m) shall not exceed $5 million; and
50,000,000 and (tiii) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect the purchase price for such property shall be paid to which (1) the Borrower or such Subsidiary for not less than 75% cash consideration; provided, however, that (x) any Restricted SubsidiaryDisposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(d), as (e), (h) and (j)), shall be for no less than the case may be, receives consideration fair market value of such property at the time of such Disposition at least equal 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 Disposition of such property pursuant to Section 7.05(f) or (m), the Borrower shall deliver to the fair market value (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 determined in good faith expressly permitted by this Section 7.05, such Collateral shall be sold free and clear of the Liens created by the Borrower) of Loan Documents, and the assets sold or otherwise disposed of; and (2) except Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Michael Foods Inc/New), Credit Agreement (Michael Foods Inc/New)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition (other than as part of its Restricted Subsidiaries to, consummate any Disposition, or in connection with the Transactions) except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete worn out, used or worn out equipment surplus property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion Subsidiaries;
(b) Dispositions of the Borrower, in each case, inventory and goods held for sale in the ordinary course of business or any disposition or transfer of inventory or goods and immaterial assets (or other assetsconsidered in the aggregate) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or substantially all of the assets of any a Restricted Subsidiary in a manner permitted Subsidiary;
(e) Dispositions constituting Permitted Investments (other than pursuant to clause (d) thereof) or otherwise permitted by Section 7.03 7.06, Dispositions permitted by Section 7.04 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is and Liens permitted to be made, and is made, under by Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party7.01;
(f) Dispositions of property pursuant to the extent qualifying for nonSale and Lease-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessBack Transactions;
(g) the leaseDispositions of cash, assignment or sub-lease of any real or personal property in the ordinary course of businessCash Equivalents and Investment Grade Securities;
(h) any issuance leases, subleases, service agreements, product sales, licenses or sale sublicenses (including agreements involving the provision of Equity Interests insoftware in copy or as a service, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations thereinand related data and services), in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles each case in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are which do not material to the conduct of materially interfere with the business of the Borrower and its the Restricted Subsidiaries Subsidiaries, taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent transfers of property subject to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.Casualty Events;
Appears in 2 contracts
Samples: Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)
Dispositions. The Borrower shall notDispose of any property or assets, and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition, exceptother than:
(a) any disposition Dispositions of cashdamaged, Cash Equivalents or Investment Grade Securities or damagedworn-out, obsolete or worn out surplus equipment and property (including intellectual property no longer material to the business of the Borrower or other assets, or assets any of the Subsidiaries) no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerits Subsidiaries, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale case in the ordinary course of business;
(b) Dispositions of inventory in the disposition ordinary course of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)business;
(c) the making Dispositions of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted InvestmentInvestments;
(d) any disposition Dispositions between and among the Borrower and the Subsidiaries; provided that if the transferor in such a transaction is a Loan Party, then either (x) the transferee must be a Loan Party, (y) the aggregate amount of assets all Dispositions made pursuant to this clause (d)(y) shall not exceed $2,500,000 in the aggregate, or issuance or sale of Equity Interests (z) the portion of any Restricted Subsidiary in any transaction or series of transactions with an aggregate such Disposition made for less than fair market value (as determined and any non-cash consideration received in good faith by the Borrower) not to exceed $5 millionexchange for such Disposition shall in each case constitute an Investment in such Subsidiary and must be otherwise permitted hereunder;
(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; provided, Dispositions among Subsidiaries that any transfer from a are not Loan Party shall be to another Loan PartyParties;
(f) to the extent qualifying for non-recognition under Section 1031 sale of the Codeservices, or the termination of any comparable or successor provisioncontracts, any exchange in each case in the ordinary course of like property (excluding any boot thereon) for use in a Similar Businessbusiness;
(g) the leasegranting of Liens permitted by Section 6.02;
(h) the sale or discount, assignment in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or subcollection thereof;
(i) any involuntary loss, damage or destruction of property, or any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(j) the leasing or subleasing of assets of Borrower or its Subsidiaries in the ordinary course of business;
(k) the sale or issuance of Equity Interests (other than Disqualified Equity Interests) of Borrower;
(i) the lapse of registered patents, trademarks, copyrights and other intellectual property of Borrower and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of patents, trademarks, copyrights or other intellectual property rights in the ordinary course of business.
(m) the making of Restricted Payments that are expressly permitted to be made pursuant to this Agreement;
(n) a Xxxxxx-lease Xxxxxxx Drag-Along Sale;
(o) Contributions of any real assets to joint ventures and other dispositions constituting Investments, in each case to the extent permitted under Section 6.04;
(p) Dispositions of investments in joint ventures and other non-wholly owned entities to the extent required by, or personal made pursuant to buy/sell arrangements between the parties set forth in, joint venture arrangements, shareholder agreements, and similar binding arrangements;
(q) Dispositions constituting the licensing or cross-licensing of intellectual property in the ordinary course of business;
(hr) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) leaseback transactions with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures having an aggregate fair market value not 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreementexceed $5,000,000;
(s) Dispositions of Investments in and the property of joint ventures businesses referred to on Schedule 1.01(d); provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing or would result from such Disposition, (ii) 85% of all the aggregate sale price from such disposition shall be paid in cash and (iii) the Net Cash Proceeds of such Dispositions does not exceed $5 millionare applied in accordance with Section 2.13(a); and
(t) Dispositions not otherwise permitted hereunder; provided that (including by way of any Sale and Lease-Back Transactioni) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value Disposition, no Default or Event of Default shall have occurred and be continuing or would result from such Disposition, (as determined in good faith by the Borrowerii) not less than seventy-five percent (75%) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary aggregate sale price from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalentsdisposition shall be paid in cash, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-the aggregate Net Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with Proceeds of all other Designated Non-Cash Consideration received Dispositions pursuant to this clause paragraph (iiit) that is at that time outstanding (but less the amount of shall not exceed $15,000,000 in any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) fiscal year and (biv) the initial amount of all such Designated Non-Cash Consideration) not to exceed $150 million, with Dispositions shall be for at least the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect assets or property subject to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposesuch Disposition.
Appears in 2 contracts
Samples: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Dispositions. The Borrower shall notMake any Disposition or enter into any agreement to make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04(a)—(d) and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition7.06), except:
(a) any disposition Dispositions of cashsurplus, Cash Equivalents or Investment Grade Securities or damagedobsolete, obsolete used or worn out equipment property or other assetsproperty that, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion judgment of the Borrower, is no longer useful in each caseits business (but excluding any real property);
(i) Dispositions of inventory, equipment or accounts receivable in the ordinary course of business and (ii) Dispositions of accounts receivable in connection with a factoring facility in an aggregate outstanding principal amount not to exceed $25,000,000 at any time entered into by a non-Guarantor Restricted Subsidiary of the Borrower undertaken consistent with past practice or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) the disposition of all or substantially all Dispositions of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentset forth on Schedule 7.05;
(d) any disposition Dispositions of assets cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property otherwise in the ordinary course of business;
(he) any issuance or sale Dispositions of Equity Interests in, or Indebtedness or other securities of, an Unrestricted SubsidiaryReceivables Assets pursuant to Permitted Securitization Programs;
(if) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(lA) the licensing or sub-licensing sale of intellectual property or other general intangibles defaulted receivables in the ordinary course of business and not as part of a Permitted Securitization Program and (other than exclusive, world-wide licenses that are longer than three (3B) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproceeding;
(rg) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in licensing, sublicensing and the cross-licensing arrangements involving any technology or other intellectual property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted SubsidiarySubsidiary 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;
(h) 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 case may belessor, receives 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 that have been subject to a casualty event or act of god;
(k) if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration at the time of 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 by the Borrower) of the assets sold or otherwise disposed of; and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or for such Restricted Subsidiary, as the case may be, is Dispositions undertaken pursuant to this Section 7.05(k) shall be paid in the form of cash or Cash Equivalents; provided, that provided that, for purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(iA) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetsecurities, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheetnotes, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities assets received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash EquivalentsEquivalents within 180 days of the receipt thereof, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), received in each case, within one hundred that conversion;
(B) any liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and eighty (180) days following as a result of which the receipt thereof, Borrower or such Restricted Subsidiary is released from further liability; and
(iiiC) any Designated Non-Cash Consideration received by the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Disposition having an Disposition; provided that the quantity equal to (1) the aggregate fair market valuevalue 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 (iiiB) that is at that time outstanding minus (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a2) the amount of the Net Proceeds previously realized in cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of from prior Designated Non-Cash Consideration being determined shall not exceed $25,000,000;
(l) any Investment permitted pursuant to Sections 7.02(l) or 7.02(m), which constitutes a Disposition;
(m) Dispositions that do not constitute Asset Sales;
(n) 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 good faith a Similar Business;
(i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of 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;
(p) the unwinding or termination of any Hedging Obligations; and
(q) the sale of assets by the Borrower and measured at its Restricted Subsidiaries consisting of Real Property solely to the time received extent that such Real Property is not necessary for the normal conduct of operations of the Borrower and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeits Restricted Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property or other assets, or assets property no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 Term Financed Aircranes, inventory and other property (other than clause equipment or real property) in the ordinary course of business (g) thereoffor the avoidance of doubt, the sale or lease of manufactured and remanufactured aircranes is within the ordinary course of business);
(c) Dispositions of equipment or real property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment similar replacement property, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property or (iii) the board of directors or senior management of the Borrower or such Subsidiary has determined in good faith that is permitted the failure to replace such property will not be made, and is made, under Section 7.05 detrimental to the business of the Borrower or any Permitted Investmentsuch Subsidiary;
(d) Dispositions of property by any disposition Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of assets such property is a First Lien Guarantor, the transferee thereof must either be the Borrower or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 milliona First Lien Guarantor;
(e) any disposition of property or assets or issuance of securities Dispositions permitted by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.04;
(f) to Dispositions not otherwise permitted under this Section 7.05 other than subsections (k) or (m); provided that the extent qualifying for non-recognition under Borrower shall have complied with the requirements of Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business2.04;
(g) licenses of Intellectual Property (both exclusive and non-exclusive) in the leaseordinary course of business and substantially consistent with past practice;
(h) Investments permitted under Section 7.02;
(i) the sale, assignment transfer or sub-lease disposition of any real accounts in connection with the collection or personal property compromise thereof in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, Capital Stock issued in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)Permitted Acquisitions;
(k) any financing transaction (excluding by way of a Sale and Leasesale-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Dateleaseback arrangements permitted hereby;
(l) rights of way, easements, and licenses necessary for the licensing conduct of Borrower’s or sub-licensing any of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);its Subsidiaries’ businesses; and
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of Dispositions by the Borrower and its Restricted Subsidiaries taken as a whole;
not otherwise permitted under this Section 7.05; provided that (oi) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all such Dispositions does property Disposed of in reliance on this clause (i) in any fiscal year shall not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsThreshold Amount; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligationshowever, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of clauses (a) the amount of the cash and Cash Equivalents so received through (less the cost of disposition, if anym) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the shall be for fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeconsideration.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Erickson Air-Crane Inc), Second Lien Credit Agreement (Erickson Air-Crane Inc)
Dispositions. The Borrower shall notNo Loan Party will, and shall not nor will it permit its Subsidiaries to make any of its Restricted Subsidiaries to, consummate any Disposition, Disposition except:
(a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition Dispositions of assets no longer used or issuance or sale useful in the conduct of Equity Interests business of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 and its Subsidiaries that are Disposed of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(hc) any issuance Dispositions of assets to a Subsidiary or sale (if from a Subsidiary) to the Borrower, provided that if the transferor of Equity Interests insuch assets is a Loan Party, or Indebtedness or other securities of, an Unrestricted Subsidiarythe transferee thereof must be a Loan Party;
(id) foreclosures on assets or Dispositions of assets required by Law, governmental regulation accounts receivable in connection with the collection or any Governmental Authoritycompromise thereof;
(je) sales Dispositions of accounts receivablelicenses, sublicenses, leases or participations therein, subleases not interfering in connection any material respect with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)the business of a Loan Party and its Subsidiaries;
(kf) any financing transaction (excluding by way Dispositions of a Sale and Lease-Back Transaction) with respect to property built cash or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Cash Equivalents in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)business;
(mg) sales, transfers and other dispositions of Investments Dispositions 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;
which: (ni) the lapse assets being disposed of are exchanged, within 365 days of such Disposition, for replacement assets or abandonment of intellectual property rights (ii) the net proceeds thereof are either (A) reinvested within 365 days from such Disposition in assets to be used in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as and/or (B) used to permanently reduce the Aggregate Commitment on a wholedollar for dollar basis;
(oh) an issuance of Equity Interests pursuant to benefit plansDispositions permitted by Sections 7.04, employment agreements7.05, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith7.10;
(pi) Dispositions resulting from any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort casualty or other claims insured damage to, or any taking under power of any kind;
(q) dispositions of receivables in connection with the compromise, settlement eminent domain or collection thereof in the ordinary course of business or in bankruptcy by condemnation or similar proceedings and exclusive proceeding of, any property or asset of factoring a Loan Party or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(tj) other Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except not exceeding in the case of a Permitted Asset Swap, at least 75aggregate for all Loan Parties and their Subsidiaries 35% of Consolidated Net Tangible Assets over the consideration therefor received by the Borrower or such Restricted Subsidiaryterm of this Agreement, measured as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposedetermination.
Appears in 2 contracts
Samples: Credit Agreement (CONE Midstream Partners LP), Credit Agreement (CONE Midstream Partners LP)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
, so long as no Default or Event of Default shall have occurred and be continuing both immediately prior to and after giving effect to such Disposition, (a) any disposition Permitted Licenses and dispositions of cashInventory and Clinical Trial Material to licensees in connection with, Cash Equivalents or Investment Grade Securities or damagedand pursuant to reasonable and customary terms of, obsolete or worn out equipment or a Permitted License (provided that such dispositions shall be limited to Inventory and Clinical Trial Material related to the Product that is the subject of such Permitted License), (b) other assets, or assets no longer used or useful in Dispositions to the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each caseextent, in the ordinary course case of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
this clause (b), (i) the disposition of all consideration paid in connection therewith shall be cash or substantially all Cash Equivalents paid contemporaneous with consummation of the assets of any Restricted Subsidiary transaction and shall be in a manner permitted pursuant to Section 7.03 (other an amount not less than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value of the property disposed of, (as determined in good faith by ii) such Disposition does not involve the Borrower) not to exceed $5 million;
(e) any sale, lease, license, transfer or other 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 Equity Interests in any Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property Products and/or any IP Rights, and (excluding any boot thereoniii) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; of in such Disposition together with the aggregate fair market value of all assets sold or otherwise disposed of by the Borrower and its Subsidiaries in all such transactions does not exceed $[***] per fiscal year of the Borrower, and (2c) except asset sales of the Specified Products to any Person that is not an Affiliate of any Loan Party, Subsidiary or Affiliate of a Loan Party or Subsidiary (excluding, for the avoidance of doubt, the Disposition of any Equity Interests of a Subsidiary), to the extent, in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less c), that, the amount of any cash or Cash Equivalents received consideration paid in connection therewith shall be cash paid contemporaneously with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount consummation of the cash transaction and Cash Equivalents so received (shall be in an amount not less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with than the fair market value of each item the property disposed; provided, however, that this clause (c) shall not include any Disposition in the form of Designated Non-Cash Consideration being determined in good faith by a separate license, sale, transfer or financing of a right to receive any sales or revenue with respect to a Specified Product (or any IP Rights related to a Specified Product); provided further that, for the Borrower and measured at avoidance of doubt, the time received and without giving effect foregoing proviso shall not restrict any Permitted License or Other Royalty Financing otherwise separately permitted pursuant to subsequent changes in value, shall, in each case, be deemed to be cash for purposes the terms of this provision and for no other purposeAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Biocryst Pharmaceuticals Inc), Credit Agreement (Biocryst Pharmaceuticals Inc)
Dispositions. The Borrower shall not, and shall not permit Neither the Company nor any of its the Restricted Subsidiaries toshall, consummate directly or indirectly, make any Disposition, except:
(a) (i) Dispositions of obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out equipment, inventory or other property or any disposition of cashinventory, Cash Equivalents goods or Investment Grade Securities other assets (including timeshare and residential assets) held for sale or damagedno longer used or useful, obsolete or worn out equipment economically practical to maintain in the conduct of the business of the Company or any of its Restricted Subsidiaries and (ii) write-off or write-down of any unrecoupable loans or advances made to timeshare owners in the ordinary course of business or consistent with past practice;
(b) Dispositions of vacation ownership intervals or other inventory (whether developed, “just-in-time” or fee-for service) or goods (or other assets, including timeshare and residential assets, furniture and equipment) held for sale and immaterial assets (including allowing any registrations or assets no longer used any applications for registration of any immaterial intellectual property to lapse or useful go abandoned in the business ordinary course of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerbusiness), in each case, in the ordinary course of business or consistent with past practice or industry practice;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Company or any disposition Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or transfer (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 of inventory land or goods other real property, whether vacant, unused or improved, in each case in the ordinary course of business or consistent with past practice or industry practice or otherwise in connection with a vacation ownership interval transaction;
(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 and which do not materially interfere with the business of the Company or any of its Restricted Subsidiaries and (ii) Dispositions of intellectual property that do not materially interfere with the business of the Company or any of its Restricted Subsidiaries so long as the Company or any of its Restricted Subsidiaries receives a license or other ownership rights to use such intellectual property;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(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), no 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 the greater of (x) $75,000,000 and (y) 1.5% of Total Assets, the Company 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), (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 purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) the greater of the principal amount and the carrying value of any liabilities (as reflected on the Company’s (or the Restricted Subsidiaries’, as applicable) most recent consolidated 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 payment in cash of the Obligations (other than intercompany liabilities owing to a Restricted Subsidiary being disposed of), that are assumed by the transferee (or a third party in connection with such transfer) with respect to the applicable Disposition and for which the Company and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing (or otherwise cancelled or terminated in connection with the transaction), (B) any securities received by the Company or the applicable Restricted Subsidiary from such transferee that are converted or reasonably expected by the Company acting in good faith to be converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received or expected to be received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Company 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 (a) $280,000,000 and (b) 5.0% of Total Assets at any time (net of any non-cash consideration converted into cash and Cash Equivalents);
(k) Dispositions (including by capital contribution or distribution), discounts, pledges, transfers, sales or repurchases of accounts receivable, or participations therein, or Securitization Assets or related assets, all or substantially all of the assets of which are Securitization Assets or any disposition, sale or repurchase of the Equity Interests in, or securities of, a Securitization Subsidiary, in each case in connection with any Qualified Securitization Financing or the disposition, sale or repurchase of an account receivable, participation therein, or Securitization Assets in connection with the collection or compromise thereof;
(l) held for sale Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(bm) Dispositions of property pursuant to sale-leaseback transactions; provided that the disposition fair market value of all or substantially all property so Disposed of after the assets Closing Date shall not exceed the greater of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause x) $100,000,000 and (gy) thereof)2.0% of Total Assets;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(dn) any disposition swap of assets in exchange for services or issuance other assets of comparable or sale greater value or usefulness to the business of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (the Company and its Subsidiaries as a whole, as determined in good faith by the Borrower) not to exceed $5 millionmanagement of the Company;
(eo) any issuance, 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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (or a Restricted 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) and;
(ip) foreclosures on assets or Dispositions the unwinding of assets required by Law, governmental regulation or any Governmental AuthoritySwap Contract pursuant to its terms;
(jq) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(nr) the lapse or abandonment of intellectual property rights in the ordinary course of business which, of any registrations or applications for registration of any immaterial IP Rights;
(s) Permitted Intercompany Activities and related transactions;
(t) any reorganizations and other transactions entered into among the Company and its Subsidiaries in connection with the reasonable good faith determination Transactions so long as such reorganizations and other transactions do not materially impair the value of the BorrowerCollateral or the Guarantees, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(ou) an issuance Dispositions of Equity Interests assets (i) acquired pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Borrower and other similar plans, policies, contracts the Restricted Subsidiaries or arrangements established (ii) that are made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the ordinary course good faith determination of business or approved by the Borrower in good faithto consummate any acquisition;
(pv) any surrender or waiver of contract rights or the settlement, release, recovery on release or surrender of contract, tort contract rights or other claims of any kind;
(q) dispositions of receivables litigation claims, in connection with the compromiseeach case, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;business; and
(rw) the granting issuance of Liens not prohibited directors’ qualifying shares and shares issued to foreign nationals as required by applicable law; provided that any Disposition of any property pursuant to this Agreement;
Section 7.05 (except pursuant to Sections 7.05(e), (i), (k), (p), (r), (s) and (t) and except for Dispositions of Investments in and from a Loan Party to any other Loan Party) shall be for no less than the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each of such Disposition, as of property at the time of such Disposition) . To the extent any Collateral is Disposed of all as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Dispositions does not exceed $5 million; and
(t) Dispositions (including Collateral shall be sold free and clear of the Liens created by way of any Sale the Loan Documents, and Lease-Back Transaction) with respect to which (1) the Borrower Administrative Agent or any Restricted Subsidiarythe Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for Transfers (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or Inventory in the ordinary course of business; (b) of damaged, worn-out, surplus or obsolete Equipment that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or worn out equipment useful in the ordinary course of business of Borrower; (c) consisting of Permitted Liens, transactions permitted by Sections 7.7 and 7.8, Permitted Investments; (d) consisting of the sale or issuance of any stock of Borrower permitted under Section 7.2 of this Agreement; (e) of non-exclusive licenses for the use of the property of Borrower or its Subsidiaries in the ordinary course of business and other assetslicenses of Intellectual Property that would not result in a legal transfer of title of the licensed property that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discrete geographical areas outside of the United States, (f) (i) Transfers to any Guarantor or assets Borrower from any Subsidiary, (ii) Transfers from any Guarantor or Borrower to any Guarantor or Borrower, (iii) Transfers from any Subsidiary that is not a Guarantor to another Subsidiary that is not a Guarantor or (iv) the sale or issuance of the capital stock of any Subsidiary of Borrower to the Borrower or any Guarantor, (g) of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property, (h) of Accounts in connection with the collection or compromise thereof (other than in connection with financing transactions) in the ordinary course of business, (i) the lapse or abandonment of any Intellectual Property in the ordinary course of business which in the reasonably good faith judgment of Borrower is no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerbusiness, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales the unwinding of accounts receivable, or participations therein, in connection with any Receivables Facility swap agreements permitted to be incurred hereunder pursuant to Section 7.02(b)(19);
their terms; (k) any financing transaction (excluding by way of a Sale the Citibank Arrangement, and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing other Transfers not in excess of intellectual property or other general intangibles Five Hundred Thousand Dollars ($500,000) in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeaggregate.
Appears in 2 contracts
Samples: Loan and Security Agreement (Medallia, Inc.), Loan and Security Agreement (Medallia, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate any Disposition, Disposition except:
(a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) Dispositions of machinery and equipment no longer used or useful in the disposition conduct of all or substantially all business of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)Company and its Subsidiaries;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Property in the ordinary course of business to the extent that (other than exclusive, world-wide licenses that i) such Property is exchanged for credit against the purchase price of similar replacement Property or (ii) the proceeds of such Disposition are longer than three (3) years)promptly applied to the purchase price of such replacement Property;
(md) salesDispositions of Property to the Company or any Subsidiary; provided, transfers and other dispositions that if the transferor of Investments in joint ventures such Property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the extent required bysuch transaction constitutes an Investment, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementssuch transaction is permitted under Section 8.02;
(ne) Dispositions of accounts receivable in connection with the lapse collection or abandonment compromise thereof;
(f) Dispositions of intellectual property rights Property in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect Person Disposing of such Property applies the proceeds thereof to each acquire replacement Property of the same or similar nature within 180 days following such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(tg) other Dispositions so long as (including by way of any Sale and Lease-Back Transaction) with respect to which (1i) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to paid in connection therewith shall be in an amount not less than the fair market value of the Property disposed of, (as determined ii) such Disposition does not involve the sale or other disposition of a minority equity interest in good faith any Subsidiary, (iii) such Disposition does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other Property concurrently being disposed of in a transaction otherwise permitted under this Section 8.05, and (iv) the Borrower) aggregate net book value of all of the assets sold or otherwise disposed of; of by the Company and (2) except its Subsidiaries in all such Dispositions in any fiscal year of the case of a Permitted Asset Swap, at least 75Company shall not exceed 15% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeConsolidated Tangible Net Worth.
Appears in 2 contracts
Samples: Credit Agreement (Brady Corp), Credit Agreement (Brady Corp)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition of any of its Restricted Subsidiaries to, consummate any Disposition, property except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition Dispositions of property no longer used 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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use useful in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeSubsidiaries;
(ob) an issuance Dispositions of Equity Interests inventory in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are 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 (including any such Dispositions effected pursuant to benefit plansa merger, employment agreementsliquidation or dissolution); provided that if the transferor of such property is a Guarantor or the Borrower (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 Section 7.04 (so long as any Disposition pursuant to a liquidation permitted pursuant to Section 7.04(b)(ii) shall be done on a pro rata basis among the equity plansholders of the applicable Subsidiary) and 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) the fair market value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date and (ii) the purchase price for such property shall be paid to the Borrower or such Restricted Subsidiary for not less than 75% cash consideration;
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(i) leases, stock subscription subleases, licenses or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established sublicenses of property in the ordinary course of business or approved and which do not materially interfere with the business of Holdings, 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 in good faith;
and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (pi) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of 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 such Dispositions does property Disposed of in reliance on this clause (k) shall not exceed $5 million; and
(t) Dispositions (including by way of any Sale 50,000,000 and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the purchase price for such property (if in excess of $5,000,000) shall be paid to the 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 such Joint Ventures, to the extent required by, or 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
(n) Dispositions of the Borrower's interest in Xxxxxxxxx-Xxxx Associates Holdings, LLC. provided that any Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received of any property pursuant to this clause Section 7.05 (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up except pursuant to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if anySections 7.05(d) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 millione)), with shall be for no less than the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured such property at the time received 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 without giving 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 of their Restricted Subsidiaries shall Dispose of any of their respective assets to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.Finance Co.
Appears in 2 contracts
Samples: Credit Agreement (Refco Information Services, LLC), Credit Agreement (Refco Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the its Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business (including allowing any registrations or any disposition applications for registration of any immaterial intellectual property to lapse or transfer go abandoned);
(b) Dispositions of inventory or and goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition of assets or issuance or sale of Equity Interests of any (i) Dispositions permitted by Section 7.04, (ii) Investments permitted by Section 7.02, and (iii) Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith Payments permitted by the Borrower) not to exceed $5 millionSection 7.06;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing DateSubsidiary, including Sale and Lease-Back Transactions and asset securitizations permitted or not prohibited by this Agreement;
(lf) Dispositions of Cash Equivalents;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(h) licensing or sub-licensing sublicensing of intellectual property or other general intangibles IP Rights in the ordinary course of business on customary terms;
(i) sales of property (i) between Loan Parties (other than exclusiveHoldings), world-wide licenses (ii) between Restricted Subsidiaries (other than Loan Parties), or (C) by Restricted Subsidiaries that are longer not Loan Parties to the Loan Parties (other than three (3) yearsHoldings), in each case in the ordinary course of business;
(mj) salesleases, transfers and other dispositions subleases, licenses or sublicenses 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are and which do not material to the conduct of materially interfere with the business of the Borrower and its Restricted Subsidiaries taken as a wholeSubsidiaries;
(ok) an issuance transfers of Equity Interests pursuant property subject to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as Casualty Events upon receipt of the time net cash proceeds of such Disposition) of all such Dispositions does not exceed $5 millionCasualty Event; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 2 contracts
Samples: Credit Agreement (At Home Group Inc.), Credit Agreement (At Home Group Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assetssurplus property, whether now owned or assets hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the its Restricted Subsidiaries in the reasonable opinion Subsidiaries;
(b) Dispositions of the Borrower, in each case, inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any disposition applications for registration of any immaterial IP Rights to lapse or go abandoned in the ordinary course of business);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (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) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, (iii) such Disposition shall consist of the transfer of inventory Equity Interests in or goods Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary or (iv) such Disposition shall consist of the transfer of economic rights with respect to Intellectual Property which does not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(e) Dispositions permitted by Section 7.02, Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) Dispositions in the ordinary course of business of Cash Equivalents;
(g) leases, subleases, licenses or sublicenses (including licenses of Intellectual Property (limited, in the case of Material Intellectual Property, to non-exclusive licenses with respect thereto and exclusive licenses which do not interfere in any material respect with the ordinary conduct of business by Borrower and its Restricted Subsidiaries)), 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;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or non-Wholly Owned Restricted Subsidiaries; provided, that, no Dispositions may be made pursuant to this Section 7.05(i) to the extent such JV Entity or non-Wholly Owned Restricted Subsidiary was, prior to a previous Disposition of Equity Interests in such JV Entity or non-Wholly Owned Restricted Subsidiary made pursuant to another provision of this Section 7.05, a Wholly Owned Restricted Subsidiary, and such Dispositions pursuant to such other provision of this Section 7.05 and this Section 7.05(i) were part of a single Disposition or series of related Disposition, other than 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 Subsidiary set forth in the shareholders 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 or pursuant to factoring arrangements, in each case to the extent not constituting a receivables financing;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) so long as no Event of Default has occurred and is continuing on the date of entry into a binding agreement with respect thereto or would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05; 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 pursuant to this clause (m) for a purchase price in excess of $3,000,000, the Borrower or any applicable Restricted Subsidiary 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 (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other assetsliabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries (other than Subordinated Debt) held 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 (other than Subordinated 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) the aggregate Designated Non-Cash Consideration received by the Borrower and its Restricted Subsidiaries for sale all Dispositions under this clause (m) 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 exceed $3,000,000 at any time outstanding (net of any Designated Non-Cash Consideration converted into cash and Cash Equivalents received in respect of any such Designated Non-Cash Consideration and calculated on a Pro Forma Basis)) and (iv) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) 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;
(bo) Dispositions of non-core or obsolete assets acquired in connection with Permitted Acquisitions occurring after the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)Closing Date;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(dp) any disposition swap of assets in exchange for services or issuance other assets in the ordinary course of business of comparable or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate greater fair market value (of usefulness to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower) not to exceed $5 million;
(eq) 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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(ir) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, consummated in connection with any Receivables Facility a Permitted Tax Restructuring; and
(s) Dispositions not otherwise permitted to be incurred pursuant to this Section 7.02(b)(19);
(k) 7.05 in an aggregate not to exceed $10,000,000. To the extent any financing transaction (excluding Collateral is disposed of as expressly permitted by way this Section 7.05 to any Person other than the Borrower or a Guarantor, such Collateral shall be sold free and clear of a Sale 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 Lease-Back Transaction) with respect shall take any actions deemed appropriate in order to property built or acquired by effect the foregoing. Notwithstanding anything to the contrary contained herein, in no event shall this Section 7.05 permit the Borrower or any other Loan Party to Dispose of its Restricted Subsidiaries after any Material Intellectual Property to any Person other than a Loan Party or the Closing Date;
(l) Equity Interests of any such Person that owns any Material Intellectual Property to any other Person other than the licensing Borrower or subany other Loan Party, other than the non-exclusive licensing of intellectual property or other general intangibles such Material Intellectual Property in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions or the exclusive licensing 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;
(n) the lapse or abandonment of intellectual property rights such Material Intellectual Property in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the extent such exclusive license does not interfere in any material respect with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSubsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) Dispositions of obsolete, worn out, used or surplus property (other than any disposition Hotel Real Property), whether now owned or hereafter acquired, in the ordinary course of cashbusiness 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 inventory, Cash Equivalents or Investment Grade Securities or damagedequipment, obsolete or worn out equipment accounts receivables or other assetscurrent assets in the ordinary course of 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;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or assets (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) 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 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 in the reasonable opinion of the BorrowerSubsidiaries, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(biii) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be madesurrender, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on release or surrender of contract, tort or other claims of any kindclaims;
(qi) dispositions transfers of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproperty subject to Casualty Events;
(r) the granting of Liens not prohibited by this Agreement;
(sj) Dispositions of Investments in and the property of joint ventures property; provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of 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 Event of Default shall have occurred and been continuing or would result from such Disposition) of all such Dispositions does not exceed $5 million; and
, (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1ii) the Borrower or any Restricted Subsidiary, as the case may be, receives 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) of the assets sold Borrower or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least any Restricted Subsidiary shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents (in each case, free and clear of all Liens at the time received); provided, however, that for the amount of:
purposes of this clause (iiii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) 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 of any such assets (with respect to the applicable Disposition or are otherwise extinguished by the transferee cancelled or terminated in connection with the transactions relating to transaction with such Disposition) and transferee, and, in each case, for which the Borrower and all such Restricted Subsidiaries shall have been validly released,
released by all applicable creditors in writing, (iiB) any notes or other obligations or securities received by the Borrower or any such the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) 180 days following the receipt thereofclosing of the applicable Disposition, and
and (iiiC) any Designated Nonaggregate non-Cash Consideration cash consideration received by the Borrower or such the applicable Restricted Subsidiary in such Disposition having an aggregate fair market valuevalue (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, taken together with all other Designated Non-Cash Consideration received pursuant to 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 is at that time outstanding would be permitted by Section 7.07 and (but less 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(j) in the aggregate exceeds $5,000,000 in any cash or Cash Equivalents received fiscal year, all Net Proceeds in excess of such amount in such fiscal year shall be applied to prepay Loans in accordance with Section 2.05(b)(ii);
(k) Dispositions of non-core assets acquired in connection with a subsequent sale Permitted Acquisition or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of other Investments; provided that (ai) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial aggregate amount of such Designated Non-Cash Consideration) sales shall not to exceed $150 million, with 25% of the fair market value of the acquired entity or business and (ii) each item of Designated Nonsuch sale is in an arm’s-Cash Consideration being length transaction and the Borrower or Restricted Subsidiary receives at least fair market value in exchange therefor (as such fair market value may be determined in good faith by the Borrower);
(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 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 comparable or greater value or usefulness to the business of the Borrower and measured at its Subsidiaries as a whole, as determined in good faith by the time received management of the Borrower;
(o) any 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 customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and without giving effect to subsequent changes similar binding arrangements;
(q) the unwinding or settlement of any Swap Contract;
(r) the lapse or abandonment in value, shall, the ordinary course of business of any registrations or applications for registration of any IP Rights not necessary in each case, be deemed the conduct of the business of the Borrower and its Restricted Subsidiaries;
(s) Dispositions required to be cash for purposes made by a Governmental Authority; and
(t) sales of assets received by the Company or any of its Restricted Subsidiaries upon the foreclosure on a Lien. To the extent any Collateral is Disposed of as permitted by this provision Section 7.05 to any Person other than a Loan Party, such Collateral shall automatically be sold free and for no other purposeclear 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 to effect the foregoing within such time period as may be required to consummate the applicable transaction.
Appears in 2 contracts
Samples: Credit Agreement (Playa Hotels & Resorts N.V.), Restatement Agreement (Playa Hotels & Resorts N.V.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, and Dispositions of furniture, fixtures and equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of the Loan Parties;
(b) Dispositions of inventory or goods (or other assetsincluding Cage Cash) held for sale and assets of de minimis value, in any case in the ordinary course of business;
(bc) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 property (other than clause Real Property) in the ordinary course of business to the extent that (gi) thereof);
such property is exchanged for credit against the purchase price of similar replacement property or (cii) the making proceeds of any Restricted Payment that is permitted such Disposition are promptly applied to be made, and is made, under Section 7.05 or any Permitted Investmentthe purchase price of similar replacement property;
(d) any disposition Dispositions of assets property to the Borrower or issuance or sale of Equity Interests of any to a Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionSubsidiary;
(e) any disposition of property or assets or issuance of securities (i) Permitted Liens constituting Dispositions and (ii) Dispositions permitted by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party(x) Section 7.04 and (y) Section 7.06;
(f) non-assignable, non-sublicensable licenses of information technology systems to the extent qualifying for non-recognition under Section 1031 of Manager pursuant to the Code, Management Agreement or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use a license agreement executed in a Similar Businessconnection therewith;
(g) the lease, assignment or sub-lease Dispositions of any real or personal property Cash Equivalents in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions in the case of assets required by Lawthe Mortgaged Properties, governmental regulation or any Governmental Authority;
Real Property Leases permitted under Section 7.19 and (j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transactionii) with respect to property built all other properties and assets of the Loan Parties, leases, licenses, subleases or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles 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 exclusiveany such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), world-wide licenses 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 Disposition pursuant to this clause (j) for a purchase price in excess of $10,000,000, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents at the time of the consummation of such Disposition (in each case, 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 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 longer than three 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 (3B) years)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) sales, transfers and other dispositions 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;
(n) the lapse Dispositions or abandonment discounts without recourse of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables accounts receivable in connection with the compromise, settlement compromise or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings (and exclusive not as part of factoring or similar arrangements;any financing transaction); and
(ro) the granting Restructuring Transactions; provided that (1) any Disposition of Liens not prohibited by any property pursuant to this Agreement;
Section 7.05 (sexcept pursuant to Sections 7.05(d) Dispositions and (e)(ii)(y)), shall be for no less than the Fair Market Value of Investments in and the such property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such DispositionDisposition and (2) in no case shall the Borrower or any Subsidiary be permitted to effect a Disposition of all such Dispositions does not exceed $5 million; and
(tA) Dispositions any Equity Interest in Boulder LLC, Red Rock LLC, Palace LLC or Sunset LLC or a significant portion of their respective properties, (including 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 way of this Section 7.05 to any Sale and Lease-Back Transaction) with respect to which (1) Person other than the Borrower or any Restricted Subsidiary, as such Collateral shall be sold free and clear of the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith Liens created by the Borrower) of Loan Documents, and the assets sold or otherwise disposed of; and (2) except Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Dispositions. The U.S. Borrower shall not, not and shall not permit any of its Restricted Subsidiaries to, consummate Subsidiary to make any Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the U.S. Borrower and the Restricted Subsidiaries in the reasonable opinion Subsidiaries;
(b) Dispositions of the Borrowerinventory, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale and immaterial assets in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) Dispositions of property to the U.S. Borrower or to a Restricted Subsidiary (including through the dissolution of any Restricted Subsidiary);
(e) Dispositions permitted by Sections 6.03 and 6.04, Liens permitted by Section 6.02 and Investments permitted by Section 6.07;
(f) Dispositions of Cash Equivalents;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof or Dispositions of accounts receivable, payment intangibles and related assets in connection with any Receivables Facility permitted under Section 6.01(b)(i);
(h) leases, subleases, assignments, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of Holdings, the U.S. Borrower and 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 (other than any disposition of assets in connection with a securitization transaction) not otherwise permitted under this Section 6.06; 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 issuance or sale of Equity Interests of would result from such Disposition and (ii) with respect to any Restricted Subsidiary in any transaction or series of transactions Disposition pursuant to this clause (j) with an aggregate fair market value (as determined in good faith by excess of $50.0 million, the Borrower) not to exceed $5 million;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Borrower or by the U.S. Borrower or a Restricted Subsidiary to another Restricted Subsidiaryshall 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 7.02); provided, however, that for the purposes of this clause (ii), (A) any transfer liabilities (as shown on the most recent consolidated balance sheet of the U.S. Borrower provided hereunder or in the footnotes thereto) of the U.S. Borrower or such Restricted Subsidiary, other than with respect to Indebtedness that is not secured by the assets disposed of, that are assumed by the transferee with respect to the applicable Disposition and for which the U.S. Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors, (B) any securities received by the U.S. Borrower or such Restricted Subsidiary from a Loan Party such transferee that are converted by the U.S. 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 Noncash Consideration received by the U.S. Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of (x) $300.0 million and (y) 3% of Total Assets of the U.S. Borrower at the time of the receipt of such Designated Noncash Consideration, 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, shall in each case of clauses (A), (B) and (C) be deemed to another Loan Partybe cash;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(hk) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(il) foreclosures on assets to the extent allowable under Section 1031 of the Code (or Dispositions comparable or successor provision), any exchange of assets required like property (excluding any boot thereon permitted by Law, governmental regulation or any Governmental Authoritysuch provision) for use in a Permitted Business;
(jm) sales the unwinding of accounts receivable, or participations therein, any Hedging Obligations;
(n) Dispositions in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired Transactions permitted by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) yearsSection 6.01(b)(xxi);
(mo) sales, transfers and other dispositions Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender Disposition to the extent not involving property (when taken together with any related Disposition or waiver series of contract rights or the settlement, release, recovery on or surrender Dispositions) with a fair market value in excess of contract, tort or other claims of any kind$25.0 million;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;[Reserved]; and
(r) Dispositions, in connection with a Disposition of a Designated Business pursuant to Section 6.04(xviii), of assets comprising of such Designated Business to any existing Subsidiary of the granting U.S. Borrower or any newly formed Subsidiary of Liens not prohibited by this Agreement;
(s) the U.S. Borrower prior to such Disposition of a Designated Business that are completed substantially concurrently with, or reasonably in advance of, the disposition of such Designated Business pursuant to Section 6.04(xviii); provided that any Disposition or series of related Dispositions of Investments in and the any property of joint ventures pursuant to this Section 6.06 (to the extent any such joint venture constitutes other than Section 6.06(d) or Section 6.06(r)) with a Restricted Subsidiary) so long as the aggregate fair market value (determinedin excess of $50.0 million, with respect to each shall be for no less than the fair market value of such Disposition, as of property at the time of such Disposition) . To the extent any Collateral is Disposed of all as expressly permitted by this Section 6.06 to any Person other than a Loan Party, such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way Collateral shall be sold free and clear of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith Liens created by the Borrower) of Loan Documents, and the assets sold or otherwise disposed of; and (2) except Agent shall be authorized to take any actions deemed appropriate in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Aramark)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, inventory and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property Investments in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property to the extent that (i) such property is exchanged for credit against the purchase price of Equity Interests in, similar replacement property or Indebtedness or other securities of, an Unrestricted Subsidiary(ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(id) foreclosures on assets or Dispositions of assets required property by Lawany Subsidiary to the Company or to a Subsidiary Guarantor; provided that if the transferor of such property is a Subsidiary Guarantor, governmental regulation the transferee thereof must either be the Company or any Governmental Authoritya Subsidiary Guarantor;
(je) sales of accounts receivable, or participations therein, in connection with any Receivables Facility Dispositions permitted to be incurred pursuant to by Section 7.02(b)(19)7.04;
(kf) any financing transaction (excluding by way non-exclusive licenses of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles IP Rights in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) for terms not exceeding five years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(tg) Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.05; provided, that (including by way of i) immediately before and immediately after giving pro forma effect to any Sale such Disposition, (x) no Default shall have occurred and Lease-Back Transaction) with respect to which be continuing, and (1y) the Borrower or any Restricted Subsidiary, as Company and its Subsidiaries shall be in pro forma compliance with the case may be, receives consideration at the time of such Disposition at least equal to the fair market value financial covenants set forth in Section 7.11 then in effect; (as determined in good faith by the Borrowerii) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent Dispositions to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities Subsidiaries that are by their terms subordinated to not Loan Parties, the Obligations, that are assumed by the transferee aggregate book value of any such assets (or are otherwise extinguished by the transferee all property Disposed of in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
reliance on this clause (ii) any notes or other obligations or securities received by during the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents term of this Agreement shall not exceed (to the extent A) 35% of Consolidated Total Assets of the cash Company and its Subsidiaries (calculated on a consolidated basis as of the end of the most recent fiscal period for which financial statements are available) or Cash Equivalents received(B) 25% of total revenues of the Company and its Subsidiaries (calculated on a consolidated basis for the most recent four-fiscal quarter period for which financial statements are available), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) in the case of Dispositions to Persons other than the Company or any Designated Non-Cash Consideration received by Subsidiary, the Borrower or such Restricted Subsidiary aggregate book value of all property Disposed of in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to reliance on this clause (iii) during the term of this Agreement shall not exceed 5% of Consolidated Total Assets of the Company and its Subsidiaries (calculated on a consolidated basis as of the end of the most recent fiscal period for which financial statements are available), provided, however, that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up Disposition pursuant to the lesser of clauses (a) the amount of the cash and Cash Equivalents so received ), (less the cost of dispositionb), if any(c), (e), (f) and (bg)(iii) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the shall be for fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Towers Watson & Co.), Credit Agreement (Towers Watson & Co.)
Dispositions. The Borrower Parent shall not, and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition, except:
(a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower Parent and the Restricted Subsidiaries in the reasonable opinion of the BorrowerParent, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale or any lease of advertising space, in each case in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Parent or a Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the BorrowerParent) not to exceed $5 10 million;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Borrower Parent or by the Borrower Parent or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets asset required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)Facility;
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower Parent, or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the BorrowerParent, are not material to the conduct of the business of the Borrower Parent and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower Parent in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) dispositions of limited partnership or equivalent Equity Interests of Capital LLC for consideration at the time of any such disposition at least equal to the fair market value (as determined in good faith by Parent) of the interests disposed of, in each case in connection with “UPREIT” acquisitions that do not constitute a Change of Control;
(s) dispositions for at least fair market value of any property the disposition of which is necessary for Parent to qualify, or maintain its qualification, as a REIT for U.S. federal income tax purposes, in each case, in Parent’s good faith determination;
(t) the granting of Liens not prohibited by this Agreement;
(su) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 10 million; and
(tv) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower Parent or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the BorrowerParent) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower Parent or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the BorrowerParent’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the BorrowerParent) of the Borrower Parent or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower Parent and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower Parent or any such Restricted Subsidiary from such transferee that are converted by the Borrower Parent or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash cash Consideration received by the Borrower Parent or such Restricted Subsidiary in such Disposition having an aggregate fair market valuevalue (as determined in good faith by Parent), taken together with all other Designated Non-Cash cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less but, to the amount of extent that any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash ConsiderationConsideration is sold or otherwise liquidated for cash, up to minus the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 200 million, with the fair market value (as determined in good faith by Parent) of each item of Designated Non-Cash cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 2 contracts
Samples: Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition of any of its property to Persons that are not Restricted Subsidiaries to, consummate any Disposition, Companies except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedused, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Companies;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary Dispositions pursuant to and in any transaction or series of transactions accordance with an aggregate fair market value (as determined the Cash Management Practices and in good faith by connection with the Borrower) not to exceed $5 millionVault Cash Operations;
(e) any disposition of property or assets or issuance of securities Dispositions permitted by a Restricted Subsidiary to the Borrower or Sections 7.02 and 7.06 and Liens permitted by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.01;
(f) Dispositions by any Restricted Company of property pursuant to sale-leaseback transactions; provided that (i) the extent qualifying fair market value of all property so Disposed of shall not exceed $50,00,000 from and after the Closing Date and (ii) the purchase price for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like such property (excluding any boot thereon) shall be paid to such Restricted Company for use in a Similar Businessnot less than 75% cash consideration;
(g) Dispositions of cash and Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the leasecollection or compromise thereof;
(i) leases, assignment subleases, licenses or sub-lease sublicenses of any real or personal property in the ordinary course of business;
(h) any issuance or sale business and which do not materially interfere with the business of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authoritythe Restricted Companies;
(j) sales transfers of accounts receivable, or participations therein, in connection with any Receivables Facility permitted property subject to be incurred pursuant to Section 7.02(b)(19)Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Dispositions in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions consisting 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the BorrowerCompany, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeCompanies;
(ol) an issuance Dispositions of Equity Interests Investments in Joint Ventures to the extent required by, or made pursuant to benefit plansbuy/sell arrangements between the joint venture parties set forth in, employment agreementsjoint venture arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Closing Date or (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);
(m) Dispositions of property to an Unrestricted Subsidiary; provided that to the extent constituting an Investment, equity plans, stock subscription or shareholder agreements, stock ownership plans such Investment must be an Investment permitted by Section 7.02.
(n) Dispositions of real property and other similar plans, policies, contracts or arrangements established related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or approved by consultants of the Borrower in good faithRestricted Companies;
(po) any surrender or waiver Dispositions of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof tangible property in the ordinary course of business or in bankruptcy or similar proceedings and exclusive as part of factoring or similar arrangementsa like-kind exchange under Section 1031 of the Code;
(p) voluntary terminations of Swap Contracts;
(q) Dispositions of Unrestricted Subsidiaries;
(r) the granting Dispositions of Liens not prohibited by this Agreement;Securitization Assets (or a fractional undivided interest therein) in a Securitization Financing permitted under Section 7.03(v); and
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes not otherwise permitted under this Section 7.05 by a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect Company to each such Disposition, as Persons that are not Affiliates of the time of Loan Parties; provided that (i) such Disposition) of all such Dispositions does not exceed $5 million; and
Disposition is made in good faith on an arms' length basis and (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1iii) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time Net Cash Proceeds of such Disposition at least equal are either reinvested or applied to prepay the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received Term Loans pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSection 2.06(b).
Appears in 2 contracts
Samples: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)
Dispositions. The Borrower shall Borrowers will not, and shall will not permit any of its Restricted their respective Subsidiaries to, consummate Dispose of any Disposition, of its assets except:
(a) issuances of Equity Interests by Lead Borrower, or issuances or other Dispositions of Equity Interests by any disposition Subsidiary to qualify directors if required by applicable law;
(b) the use or transfer of cash, cash or Cash Equivalents in a manner that is not prohibited by the terms of this Credit Agreement or Investment Grade Securities the other Loan Documents;
(c) the granting of Liens permitted by Section 7.2, Investments permitted by Section 7.4, and Restricted Payments permitted by Section 7.8;
(d) Dispositions arising in connection with any Casualty Event or damagedsimilar events;
(e) the licensing and sublicensing on a non-exclusive basis (but which may be on an exclusive basis as to specific countries, obsolete regions or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerterritories, in each casecase other than the United States and its territories or possessions) of patents, in the ordinary course of business or any disposition or transfer of inventory or goods (or trademarks, copyrights, and other assets) held for sale intellectual property rights in the ordinary course of business;
(bf) the disposition abandonment, cancellation or lapse of all or substantially all issued patents, registered trademarks and other registered intellectual property of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Codeor Subsidiary thereof, or any comparable application therefor, to the extent, in Lead Borrower’s reasonable business judgment, such intellectual property is not economically desirable in the conduct of such Loan Party’s or successor provisionSubsidiary’s business or so long as such abandonment, any exchange cancellation or lapse is not materially adverse to the interests of like property (excluding any boot thereon) for use in a Similar Businessthe Administrative Agent and the Lenders;
(g) the leaseDispositions of substantially worn out, assignment damaged, uneconomical, surplus or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness obsolete equipment or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faithconsistent with past practice;
(ph) any surrender or waiver of contract rights or the settlementsale, releasetransfer, recovery on or surrender of contract, tort termination or other claims Disposition consisting of the unwinding or termination of any kindhedging arrangement or transaction contemplated thereby which is not prohibited hereunder;
(qi) dispositions any Disposition of receivables assets (other than Equity Interests of any Wholly-Owned Subsidiary, unless all of the Equity Interests of such Wholly-Owned Subsidiary are sold in connection accordance with the compromisethis clause (i)) for at least fair market value, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determinedA) no Event of Default then exists or would immediately result therefrom, with respect to each such Disposition, as of the time of such Disposition(B) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower applicable Loan Party or such Restricted Subsidiary, as the case may be, is in the form Subsidiary consists of cash or Cash Equivalents; providedprovided that for purposes of this clause (B), that “cash” shall include (1) the amount of:
(i) of any liabilities (as shown on the Lead Borrower’s or such Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowernotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee cancelled in connection with the transactions relating to such Disposition) transaction and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii2) any notes or other obligations or other securities or assets received by the Lead Borrower or any such Restricted Subsidiary from such the transferee that are converted by the Lead Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days after receipt thereof (to the extent of the cash or Cash Equivalents received), in each case(C) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.7(b), within one hundred and eighty (180D) days following the receipt thereof, and
(iii) any Designated Nonaggregate amount of the cash and non-Cash Consideration cash proceeds received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with from all other Designated Non-Cash Consideration received assets sold pursuant to this clause (iiii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) shall not to exceed $150 million30,000,000 in the aggregate in any Fiscal Year (for this purpose, with using the fair market value of each item property other than cash and Cash Equivalents);
(j) Dispositions of Designated Non-Cash Consideration being determined assets acquired by Lead Borrower or any Subsidiary pursuant to a Permitted Acquisition to the extent consummated within 12 months of the date of such Permitted Acquisition and having a fair market value in good faith by an aggregate amount not to exceed 15% of the Borrower and measured at aggregate purchase consideration for the time received and without giving effect assets acquired pursuant to subsequent changes such Permitted Acquisition;
(k) leases, licenses or subleases or sublicenses of any real property in valuethe ordinary course of business, shallincluding the termination thereof in the ordinary course of business;
(l) the discount, forgiveness or sale, in each casecase without recourse and in the ordinary course of business, be deemed of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables); and
(m) any Disposition of any Investment acquired by virtue of any Bail-in Action with respect to be cash for purposes of this provision and for no other purposeany Lender (or any direct or indirect parent company thereof).
Appears in 2 contracts
Samples: Credit Agreement (Steven Madden, Ltd.), Credit Agreement (Steven Madden, Ltd.)
Dispositions. The Holdings and the Borrower shall will not, and shall will not permit any of its Restricted their respective Subsidiaries to, consummate Dispose of any Disposition, of its assets except:
(a) issuances of Qualified Equity Interests by (i) any disposition Subsidiary of casha Loan Party to a Loan Party, Cash Equivalents (ii) the Borrower to Holdings, in each case subject to the Collateral and Guarantee Requirement and Section 2.7(b)(i)(B);
(i) any Disposition by (A) any Loan Party to any other Loan Party or Investment Grade Securities or damaged(B) a Non-Loan Party Subsidiary to another Non-Loan Party Subsidiary or, obsolete or worn out equipment if in compliance with Section 7.9, any Loan Party, in each case so long as the Collateral and Guarantee Requirement is satisfied after giving effect thereto, (ii) the collection of accounts receivable and other obligations in the ordinary course of business, and the discount, write-off or other assets, Disposition of accounts receivable overdue by more than thirty (30) days or assets no longer used or useful in the business sale of any such accounts receivable for the Borrower and the Restricted Subsidiaries in the reasonable opinion purposes of the Borrowercollection to any collection agency, in each case, in the ordinary course of business or business, (iii) any disposition or transfer Disposition of inventory or goods (inventory, products, services, accounts receivable, cash, Cash Equivalents or other assets) held for sale current assets or financial instruments, in each case in the ordinary course of business;
, (biv) Dispositions of worn out, damaged, unserviceable, uneconomical, surplus, outdated or obsolete assets, and assets that are no longer useful in the disposition business of all Holdings or substantially all its Subsidiaries or that are no longer necessary therefor and (v) any Disposition constituting the surrender or waiver of contractual rights or the assets settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business, or the write-off or write-down of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)asset;
(c) the making use or transfer of any Restricted Payment money, cash or Cash Equivalents in a manner that is permitted to be made, and is made, under Section 7.05 not prohibited by the terms of this Credit Agreement or any Permitted Investmentthe other Loan Documents;
(d) any disposition the licensing and sublicensing on a non-exclusive basis of assets or issuance or sale patents, trademarks, copyrights, and other Intellectual Property rights in the ordinary course of Equity Interests business, and the leasing, subleasing, licensing and sublicensing of any Restricted Subsidiary in other property (and the termination of any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionforegoing);
(e) any disposition the granting of property or assets or issuance of securities Liens permitted hereunder and the other transactions permitted by a Restricted Subsidiary Section 7.2, Section 7.4, Section 7.8 and, to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; providedextent not otherwise permitted under this Section 7.5, that any transfer from a Loan Party shall be to another Loan PartySection 7.3;
(f) to any Casualty Event and the extent qualifying for non-recognition under Section 1031 Disposition of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businesssubject thereto;
(g) the leaseabandonment, assignment cancellation, lapse, expiry or sub-lease other Disposition of any real Intellectual Property of a Loan Party or personal property Subsidiary to the extent, in such Loan Party’s reasonable business judgment, not economically desirable in the ordinary course conduct of businesssuch Loan Party’s business or so long as such abandonment, cancellation, lapse, expiry or other Disposition is not materially adverse to the interests of the Lenders and (ii) the lapse or expiration of Intellectual Property in accordance with their statutory terms;
(h) any issuance or sale the Disposition of assets (other than Equity Interests inof any Wholly-Owned Subsidiary) for at least fair market value, so long as (i) no Default then exists or would immediately result therefrom, (ii) 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 (provided that the following shall be deemed to be cash or Cash Equivalents: the amount of any Indebtedness or other securities ofliabilities of Holdings or any Subsidiary that are assumed by the transferee of any such assets), an Unrestricted Subsidiary(iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.7(b)(i)(A) and (iv) the aggregate amount of cash and non-cash proceeds received from all assets sold pursuant to this clause (h) shall not exceed the greater of (x) $7,500,000 and (y) 7.5% of Consolidated Total Assets in the aggregate during the term of this Credit Agreement (for this purpose, using the fair market value of property other than cash and Cash Equivalents);
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation equipment or any Governmental AuthorityReal Property to the extent such property is exchanged for credit against the purchase price of similar replacement property or for other equipment or Real Property;
(j) sales any Disposition comprising the unwinding or terminating of accounts receivable, hedging arrangements or participations therein, in connection with transactions contemplated by any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);Swap Agreement which are not prohibited hereunder; and
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary contractual buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
. For purposes of determining compliance with this Section 7.5, (ni) a Disposition need not be permitted solely by reference to one of the lapse or abandonment of intellectual property rights categories described in clauses (a) through (k) but may be permitted in part under any combination thereof, and (ii) in the ordinary course event that a Disposition (or any part thereof) meets the criteria of business whichmore than one of the categories described in clauses (a) through (k) above, Holdings and the Borrower will be permitted, in their discretion, to classify such Disposition on the reasonable good faith determination date of the Borrowerits occurrence, are not material to the conduct or later reclassify all or a portion of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of in any Sale and Lease-Back Transaction) manner that complies with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSection.
Appears in 2 contracts
Samples: Credit Agreement (Mynaric AG), Credit Agreement (Mynaric AG)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents worn -out, uneconomic, damaged or Investment Grade Securities or damagedsurplus property, obsolete or worn out equipment or other assets, or assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Borrower and the its Restricted Subsidiaries in the reasonable opinion of the BorrowerSubsidiaries, in each casewhether now owned or hereafter owned or leased or acquired, in the ordinary course of business and Dispositions of property no longer in connection with an acquisition or used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business or consistent with past practice (including allowing any patent issuances, registrations or any disposition patent applications or transfer applications for registration of inventory any immaterial IP Rights to lapse or goods (or other assets) held for sale go abandoned in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) Dispositions of property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment similar replacement property that is permitted promptly purchased or (ii) the proceeds of such Disposition are promptly applied to be made, and the purchase price of such replacement property (which replacement property is made, under Section 7.05 or any Permitted Investmentactually promptly purchased);
(d) any disposition Dispositions of assets property to the Borrower or issuance 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 sale of Equity Interests of any Restricted Subsidiary in any (ii) to the extent such transaction or series of transactions with constitutes an aggregate fair market value Investment, such transaction is permitted under Section 7.02 (as determined in good faith by the Borrower) not to exceed $5 millionother than Section 7.02(f));
(e) any disposition of property or assets or issuance of securities Dispositions permitted by a Restricted Subsidiary to the Borrower or Section 7.02 (other than Section 7.02(f)), Section 7.04 (other than Section 7.04(g)) and Section 7.06 and Liens permitted by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.01 (other than Section 7.01(m));
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)or consistent with past practice of Cash Equivalents or Investment Grade Securities;
(mg) salesleases, subleases, licenses or sublicenses, 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 Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers and other dispositions 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, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(nj) the lapse Dispositions of inventory, accounts receivable or abandonment of intellectual property rights notes receivables, in each case in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement collection or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementscompromise thereof;
(rk) the granting unwinding of Liens not prohibited by this Agreementany Swap Contract pursuant to its terms;
(sl) Permitted Sale Leasebacks;
(m) Dispositions of Investments in and the property of joint ventures not otherwise permitted pursuant to this Section 7.05; provided that (to the extent any i) such joint venture constitutes a Restricted Subsidiary) so long as the aggregate Disposition shall be for fair market value as reasonably determined by the Borrower or the applicable Restricted Subsidiary in good faith based on sales of similar assets, if available, (determinedii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
and (t) Dispositions (including by way of any Sale and Lease-Back Transactioniii) with respect to which any Disposition pursuant to this clause (1m) for a purchase price in excess of $5,000,000, the Borrower or any a Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least Subsidiary shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that for the amount of:
purposes of this clause (iiii), (A) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet of the Borrower provided hereunder or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the ObligationsObligations under the Loan Documents, that are assumed by the transferee of any such assets (or are otherwise extinguished by with respect to the transferee in connection with the transactions relating to such Disposition) applicable Disposition and for which the Borrower and all such of the Restricted Subsidiaries shall have been validly released,
released by all applicable creditors in writing, shall be deemed to be cash, (iiB) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) 180 days following the receipt thereofclosing of the applicable Disposition, and
shall be deemed to be cash and (iiiC) any Designated Non-Cash Consideration received by the 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 (iiim) that is at that time outstanding (but less outstanding, not in excess of $10,000,00025,000,000 at the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount time of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount receipt of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, shall be deemed to be cash for purposes cash;
(n) the abandonment or other Disposition of intellectual property which are reasonably determined by the Borrower, in good faith, to be no longer economical, negligible, obsolete or otherwise not material to its business;
(o) any sale, lease, assignment transfer or disposition arising from any step or transaction set out in the Structure Memorandum to implement the SHL Acquisition and Refinancing;
(p) any forgiveness, writeoff or writedown of any intercompany obligations; provided that any forgiveness of obligations owing by a Non-Loan Party shall not result in additional ability to make Investments in Non-Loan Parties in the amount of such forgiven obligations; and
(a) Dispositions not otherwise permittedany Disposition in any transaction or series of related transactions of assets with an aggregate fair market value of less than $15,000,000; provided that the aggregate fair market value of all assets that are the subject of Dispositions made pursuant to this provision Section 7.05 in an aggregate amount not toclause (q) shall not exceed $5,000,000.50,000,000 since the Amendment No. 4 Effective Date;
(b) Dispositions or leases of equipment related to information technology infrastructure located within the Borrower’s or a Subsidiary’s shared service centers or office locations, including assets related to electrical, fire protection, security, communications, servers, storage, backup and for no recovery functions, software applications and software licenses owned by the Borrower or a Restricted Subsidiary on the Amendment No. 4 Effective Date;
(c) any issuances of Equity Interest in, or Indebtedness or other purposesecurities of, an Unrestricted Subsidiary;
(d) foreclosures, condemnation or any similar action on assets or the granting of Liens pursuant to Section 7.02;
(e) any Permitted Foreign Subsidiary Disposition;
(f) any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(g) the unwinding of any Cash Management Obligations, Swap Obligations, or treasury management services; and
(h) Dispositions as may be necessary (as reasonably determined by the Borrower) to effectuate a Reorganization.
Appears in 2 contracts
Samples: Credit Agreement (CEB Inc.), Credit Agreement (CEB Inc.)
Dispositions. The Borrower shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, consummate make any Disposition, except:
(a) any Disposition between or among the Borrower and the Restricted Subsidiaries; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(b) any Disposition that constitutes a Restricted Payment permitted by Section 8.2.5 [Restricted Payments] or an Investment permitted by Section 8.2.4 [Loans and Investments];
(c) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Borrower or to a Restricted Subsidiary;
(d) the sale of extracted Coal, other mineral products or other inventory in the ordinary course of business;
(e) a sale, contribution, conveyance or other disposition of cashReceivables and related assets of the type specified in the definition of Qualified Receivables Transaction by or to a Receivables Subsidiary in a Qualified Receivables Transaction permitted by Section 8.2.1(j) [Indebtedness];
(f) any Disposition of surplus, Cash Equivalents or Investment Grade Securities or damaged, worn-out or obsolete or worn out equipment assets in the ordinary course of business (including the abandonment or other assetsdisposition of intellectual property, or assets including seismic data and interpretations thereof, that is, in the reasonable judgment of the Borrower, no longer used economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereoftaken as whole);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) licenses and sublicenses by the leaseBorrower or any Restricted Subsidiary of software or intellectual property, assignment or sub-lease of any real or personal property including seismic data and interpretations thereof, in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(ri) the granting of Permitted Liens not prohibited by this Agreementand dispositions in connection with Permitted Liens;
(sj) Dispositions the sale or other disposition of cash or Temporary Cash Investments in and or other financial instruments;
(k) the property early termination or unwinding of joint ventures any Hedging Obligations;
(to the extent l) any Disposition; provided that (i) within 365 days following any such joint venture constitutes a Restricted Subsidiary) so long as Disposition of assets that were the aggregate fair market value (determinedsubject thereof are replaced by substitute, with respect to each such Disposition, as replacement or other assets of the time type used in the business of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by all such substitute assets are subject to the Borrower or any Collateral Agent’s Lien for the benefit of the Secured Parties to the extent such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms substitute assets are required to be satisfied for cash or Cash Equivalents (to the extent part of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received Collateral pursuant to this clause (iii) Agreement or the other Loan Documents; provided that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item all assets Disposed of Designated Non-Cash Consideration being determined under this clause in good faith any given fiscal year (other than transfers of property subject to a Casualty Event or condemnation proceeding) shall not exceed $60,000,000;
(m) leases or subleases of subsurface interests in Real Property that are not part of the Pennsylvania Mine Complex and are in the reasonable judgment of the Borrower not economically practical for the Borrower or any of its Subsidiaries to mine or operate;
(n) other Dispositions; provided that the fair market value of all assets Disposed of under this clause in any given fiscal year (other than transfers of property subject to a Casualty Event or condemnation proceeding) shall not exceed the greater of (i) $10,000,000 and (ii) 2.5% of CTA as of the end of the preceding fiscal year; and
(o) any Disposition that is not permitted by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes other clauses of this provision Section 8.2.7 [Dispositions], which is approved by the Required Lenders; provided that, (i) in the case of clauses (e), (l) and for (n), no other purposePotential Default or Event of Default is then in existence or will result therefrom.
Appears in 2 contracts
Samples: Revolving Credit Facility (CNX Coal Resources LP), Revolving Credit Facility (CNX Coal Resources LP)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property in arms-length transactions in the ordinary course of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiarybusiness;
(id) foreclosures on assets or Dispositions of assets required by Law, governmental regulation property to the Borrower or any Governmental Authorityto a Guarantor;
(je) sales of accounts receivable, or participations therein, in connection with any Receivables Facility Dispositions expressly permitted to be incurred pursuant to by Section 7.02(b)(19)7.04;
(kf) any financing transaction (excluding by way i) non-exclusive licenses of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles IP Rights in the ordinary course of business in connection with Franchise Agreements and substantially consistent with past practice, (other than exclusive, world-wide licenses ii) transfer of trademarks to the Joint Venture Entities and Subsidiaries that are longer than three not Loan Parties so long as such trademarks relate exclusively to the operation of Restaurants by such Person outside the United States and (3iii) years)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;
(mg) salesother Dispositions of assets in arms-length transactions so long as (1) at the time of such Disposition, transfers 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 other dispositions Cash Equivalents, and (1) the aggregate proceeds from assets Disposed of Investments in joint ventures pursuant 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 arrangementsthis clause (g) during any Fiscal Year shall not exceed $5,000,000;
(nh) the lapse sale or abandonment issuance of intellectual (i) any Subsidiary’s Equity Interests to the Borrower or any Guarantor or (ii) any Minority Interest;
(i) the leasing or sub-leasing of real property rights or entering into occupancy agreements with respect thereto, in each case, that would not materially interfere with the required use of such real property by the Borrower or its Subsidiaries and is in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower at arm’s length and its Restricted Subsidiaries taken as a wholeon market terms;
(oj) an issuance Dispositions of Equity Interests restaurants or other assets acquired pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;Permitted Acquisitions that have not been rebranded as a “Noodles & Company” restaurant; and
(pk) any surrender or waiver transfer of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims assets of any kind;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
(ql) dispositions Dispositions of receivables Leases, leasehold interests, inventory or furniture, fixtures and equipment in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
Identified Restaurant Closures/Re-Franchisings (r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received2017), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 2 contracts
Samples: Securities Purchase Agreement (NOODLES & Co), Credit Agreement (NOODLES & Co)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
Dispositions (i) foreclosures on assets of obsolete or Dispositions of assets required by Law, governmental regulation worn out property or any Governmental Authority;
other property, whether now owned or hereafter acquired, that is no longer used or useful in the conduct of the businesses of the Company and its Subsidiaries, (jii) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusiveconsisting of the abandonment, worldcancellation, non-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, renewal 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 lapse or abandonment discontinuance of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the BorrowerCompany, are not material to is desirable in the conduct of the business of the Borrower Company and its Restricted Subsidiaries taken as a whole;
and not materially disadvantageous to the interests of the Lenders, and (oiii) an issuance in the form of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription the surrender or shareholder agreements, stock ownership plans waiver of contractual rights and other similar plans, policies, contracts the settlement or arrangements established waiver of contractual or litigation claims in the ordinary course of business or approved by the Borrower in good faithbusiness;
(pc) any surrender Dispositions of equipment or waiver real property to the extent that (i) such property is exchanged for credit against the purchase price of contract rights similar replacement property or (ii) the settlement, release, recovery on or surrender proceeds of contract, tort or other claims such Disposition are reasonably promptly applied to the purchase price of any kindsuch replacement property;
(qd) dispositions Dispositions of receivables in connection with property by any Subsidiary to the compromiseCompany or to a wholly-owned Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, settlement the transferee thereof must either be the Company or collection thereof a Subsidiary Guarantor;
(e) Dispositions (without recourse) of accounts receivable arising in the ordinary course of business business, so long as each such Disposition is consummated in a manner consistent with past practices and otherwise in connection with the compromise or in bankruptcy or similar proceedings and exclusive collection of factoring or similar arrangementssuch accounts receivable;
(rf) the granting of Liens not prohibited Dispositions permitted by this Agreement;Section 7.04 or in connection with transactions permitted under Section 7.03(e); and
(sg) Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.05 in the context of Investments in arm’s length transactions and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate consummated on fair market value (determined, with respect to each such Dispositionand reasonable terms, as determined by a Responsible Officer of the Company or the applicable Subsidiary at the 87 time of such Disposition) of all such Dispositions does not exceed $5 million; and
provided that (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(ix) any liabilities Disposition consummated pursuant to clause (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowera) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets through (or are otherwise extinguished by the transferee in connection with the transactions relating to such Dispositiong) and shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with and (y) the net book value of all other Designated Non-Cash Consideration received assets Disposed of in all transactions consummated since the Closing Date pursuant to this clause (iiig) that is shall at that no time outstanding (but less exceed the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser greater of (aI) the amount $250,000,000 and (II) 25% of the cash and Cash Equivalents so received (less Company’s Consolidated Assets, determined as of the cost end of disposition, if any) and (b) the initial amount most recently completed fiscal quarter of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeCompany.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedunneeded, obsolete unproductive or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course Ordinary Course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of businessBusiness to Persons;
(b) Dispositions of inventory and leases of property, in each case in the disposition Ordinary Course of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);Business; 70290124_9
(c) Dispositions of equipment or real property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment similar replacement property for use in the Ordinary Course of Business, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property for use in the Ordinary Course of Business or (iii) the board of directors or senior management of the Company or such Subsidiary has determined in good faith that is permitted the failure to replace such property will not be made, and is made, under Section 7.05 detrimental to the business of the Company or any Permitted Investmentsuch Subsidiary;
(d) Dispositions of property by any disposition Subsidiary to the Company or to a wholly-owned Subsidiary of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionCompany;
(e) any disposition of property or assets or issuance of securities Dispositions comprising transactions expressly permitted by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.04(a) through (c);
(f) to the extent qualifying for non-recognition under Section 1031 exclusive licenses or sublicenses of IP Rights in the Ordinary Course of Business and substantially consistent with past practice for terms not exceeding five years and leases and subleases granted to others that do not materially interfere with the Ordinary Course of Business of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessCompany and its Subsidiaries;
(g) the leasesale, assignment without recourse and in the Ordinary Course or sub-lease Business, of accounts receivable due from Federal, state or other Governmental Authority arising in the Ordinary Course of Business (and not as part of any real bulk sale or personal property financing of receivables) in an amount not to exceed $25,000,000 in any fiscal year or $50,000,000 in the ordinary course aggregate after the date of businessthis Agreement;
(h) Dispositions of non-core assets acquired in a permitted Acquisition by the Company or any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiaryits Subsidiaries within 12 months of such Acquisition;
(i) foreclosures on assets or Dispositions of assets required property constituting (i) the making of Investments permitted under Section 7.02, (ii) Indebtedness permitted under Section 7.03 and/or (iii) the making of Restricted Payments permitted by Law, governmental regulation or any Governmental AuthoritySection 7.07;
(j) sales the Disposition of accounts receivableequity interests in, or participations thereinassets of, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);GLC Venture or any Project Debt Entity; and
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries Dispositions after the Closing Date;
date of this Agreement not otherwise permitted under clauses (la) the licensing or sub-licensing of intellectual property or other general intangibles through (j) above in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures an aggregate amount not 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 755% of the consideration therefor received by consolidated total assets of the Borrower or such Restricted Subsidiary, Company and its Subsidiaries as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetDisposition, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borroweraccordance with GAAP; provided that any Disposition pursuant to subsections (a) through (k) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and this Section 7.05 shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (collectively “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, exceptexcept for:
(a) any disposition Transfers in the ordinary course of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assetsbusiness for reasonably equivalent consideration;
(b) Transfers of property in connection with sale-leaseback transactions;
(c) Transfers of property to the extent such property is exchanged for credit against, or assets no longer proceeds are promptly applied to, the purchase price of other property used or useful in the business of Borrower or its Subsidiaries;
(d) Transfers constituting non-exclusive licenses and similar arrangements for the Borrower and the Restricted Subsidiaries in the reasonable opinion use of the Borrower, in each case, property of Borrower or its Subsidiaries in the ordinary course of business or any disposition or and other non-perpetual licenses that may be exclusive in some respects other than territory (and/or that may be exclusive as to territory only in discreet geographical areas outside of the United States), but that could not result in a legal transfer of inventory Borrower’s title in the licensed property;
(e) Transfers otherwise permitted by the Loan Documents;
(f) sales or goods (or other assets) held for sale discounting of delinquent accounts in the ordinary course of business;
(b) the disposition of all , including, without limitation, sales or substantially all of the assets of any Restricted Subsidiary in a manner permitted discounting made pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessPurchase Agreement;
(g) Transfers associated with the lease, assignment making or sub-lease disposition of any real Permitted Investments;
(h) Transfers in connection with a permitted acquisition of a portion of the assets or personal property rights acquired; and
(i) Transfers of assets (other than Accounts and Inventory (unless such Transfer is in the ordinary course of Borrower’s business;
(h)) any issuance or sale of Equity Interests innot otherwise permitted in this Section 7.1, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
aggregate book value of all such Transfers by Borrower and its Subsidiaries, together, shall not exceed in any fiscal year, five percent (i5.0%) any liabilities (as shown on the of Borrower’s most recent consolidated balance sheet or in total assets as of the footnotes thereto or if incurred or accrued subsequent to last day of the fiscal year immediately preceding the date of such balance sheetdetermination. Notwithstanding the foregoing, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior Borrower shall not make any payments pursuant to the date of such balance sheet, as determined in good faith by the Borrower) terms of the Borrower or such Restricted Subsidiary, Indenture other than liabilities that are by their terms subordinated non-accelerated regularly scheduled payments pursuant to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeIndenture.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) (i) Dispositions of inventory in the disposition ordinary course of all business and (ii) Dispositions of property (including abandonment of IP Rights) no longer used or substantially all useful in the conduct of the assets business of the Company or any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)of its Subsidiaries;
(c) Dispositions of equipment or real property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment that is permitted similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to be made, and is made, under Section 7.05 or any Permitted Investmentthe purchase price of such replacement property;
(d) Dispositions of property by any disposition Subsidiary to the Company or to a Subsidiary; provided that if the transferor of assets such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or issuance a Subsidiary Guarantor;
(e) Dispositions in the form of Investments permitted by Section 7.03, fundamental changes permitted by Section 7.04 and Restricted Payments permitted by Section 7.06;
(f) Dispositions of cash and Cash Equivalents;
(g) leases, subleases, licenses or sale sublicenses (including licenses of Equity Interests IP Rights), and terminations thereof, in each case in the ordinary course of any Restricted Subsidiary business and which do not materially interfere with the business of the Company and its Subsidiaries, taken as a whole;
(h) Dispositions of (or abandoning or allowing to lapse) IP Rights that (i) in any transaction or series the exercise of transactions with its reasonable business judgment, the Company has determined are not of material value to the business of the Company and its Subsidiaries, taken as a whole, and (ii) during the term of this Agreement have an aggregate fair market value (as determined in good faith by the Borrower) not to exceed exceeding $5 million30,000,000;
(ei) any disposition Dispositions or discounts without recourse of property accounts receivable in connection with the compromise 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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property collection thereof in the ordinary course of business;
(hj) any issuance or sale Dispositions of Equity Interests inassets other than IP Rights not otherwise permitted under this Section 7.05 (for the avoidance of doubt, or Indebtedness or other securities of, an Unrestricted Subsidiary;
the disposition of IP Rights is not permitted under this clause (j)); provided that (i) foreclosures at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate fair market value of all property Disposed of after the date hereof in reliance on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
this clause (j) sales shall not exceed twenty-five percent (25%) of accounts receivable, or participations therein, in connection with any Receivables Facility permitted Consolidated Total Assets of the Company and its Subsidiaries during the term of this Agreement (measured as of the applicable date of financial information most recently delivered to be incurred the Lenders pursuant to Section 7.02(b)(196.01(a) or (b)) and (iii) no less than 75% of the consideration received for such assets shall be paid in cash;
(k) the granting of any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing DateLiens permitted under Section 7.01;
(l) the licensing surrender or sub-licensing waiver of intellectual contractual rights and settlement or waiver of contractual or litigation claims by the Company or any Subsidiary in the ordinary course of business;
(m) the unwinding of any Swap Contract pursuant to its terms;
(n) the issuance or sale of shares of any Subsidiary’s Equity Interests to qualify directors if required by applicable law;
(o) Disposition of property or other general intangibles assets subject to a casualty event or any condemnation or similar proceeding; and
(p) Dispositions of the beneficial economic interest in (but not the legal ownership title or record title of any applications or registrations for) Foreign IP Rights by a Loan Party to Subsidiaries of the Company in the ordinary course of business and on terms consistent with past practices; provided that (i) the transferor receives fair market value in exchange for such transfer; (ii) the Company or another Loan Party retains (or obtains) the legal ownership title and record title of any registrations or applications for such Foreign IP Rights pursuant to (or in connection with) any such Disposition and (iii) no Event of Default has occurred and is continuing; provided, however, that any Disposition pursuant to this Section 7.05 (other than exclusivewith respect to clause (a), world-wide licenses that are longer than three (3) yearsb)(ii);
, (m) salesd), transfers and other dispositions of Investments in joint ventures to the extent required by(e), or made pursuant to(i), customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k), (l), (n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o)) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to shall be for fair market value. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to any Person other than a Loan Party, such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as Collateral shall be sold free and clear of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith Liens created by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (PMC Sierra Inc)
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assetssurplus property, whether now owned or assets hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Parents, the Borrower and the Restricted Subsidiaries;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial IP Rights to lapse or go abandoned in the ordinary course of business);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);
(d) Dispositions of property to a Parent, 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 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 permitted by Section 7.02, Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) Dispositions in the ordinary course of business of Cash Equivalents;
(g) 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 Parents, the Borrower and the 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 Subsidiary set forth in the shareholders 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 or pursuant to factoring arrangements, in each case to the extent not constituting a receivables financing;
(k) 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; provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) the Borrower or the applicable Parent or 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 (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 any Parent, the Borrower or any of the Restricted Subsidiaries (other than Subordinated Debt) and the valid release of such Parent, 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 any Parent, the Borrower or any of the Restricted Subsidiaries from the transferee that are converted by any Parent, the Borrower or any of the Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Subordinated Debt) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that each Parent, the Borrower and each Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) the aggregate Designated Non-Cash Consideration received by the Parents, the Borrower and the Restricted Subsidiaries in the reasonable opinion for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the Borrowerclosing of the applicable Disposition for which such Designated Non-Cash Consideration is received) not to exceed the greater of (x) $3050,000,000 and (y) 25% of Consolidated EBITDA of the Parents, the Borrower and the Restricted Subsidiaries for the most recently ended Test Period at any time outstanding (net of any Designated Non-Cash Consideration converted into cash and Cash Equivalents received in each caserespect of any such Designated Non-Cash Consideration and calculated on a Pro Forma Basis) and (iii) the Borrower or the applicable Parent or Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) the Parents, in the ordinary course of business Borrower and the Restricted Subsidiaries may surrender or any disposition waive contractual rights and settle or transfer of inventory waive contractual or goods (or other assets) held for sale litigation claims in the ordinary course of business;
(bo) the disposition Dispositions of all non-core or substantially all of the obsolete assets of any Restricted Subsidiary acquired in connection with a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)Permitted Acquisition;
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(dp) any disposition swap of assets in exchange for services or issuance other assets in the ordinary course of business of comparable or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate greater fair market value (of usefulness to the business of the Parents, the Borrower and the Restricted Subsidiaries as a whole, as determined in good faith by the Borrower) not to exceed $5 million;
(eq) 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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(ir) foreclosures on assets or Specified Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, and Dispositions consummated in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this AgreementPermitted Tax Restructuring;
(s) Dispositions for Cash Equivalents (other than in connection with the capitalization of Investments in and the property of joint ventures (any special purpose entity used to the extent effect any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such DispositionPermitted Receivables Financing) of all such Dispositions does not exceed $5 millionaccounts receivable in connection with any Permitted Receivables Financing; and
(t) Dispositions (including any Permitted Distribution Business Dispositions. To the extent any Collateral is Disposed of as expressly permitted by way of this Section 7.05 to any Sale and Lease-Back Transaction) with respect to which (1) Person other than the Borrower or any Restricted SubsidiaryGuarantor, as such Collateral shall be sold free and clear of the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith Liens created by the Borrower) of Loan Documents and, if requested by the assets sold or otherwise disposed of; and (2) except in Administrative Agent, upon the case of a Permitted Asset Swap, at least 75% of the consideration therefor received certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or such Restricted Subsidiarythe Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 1 contract
Samples: Credit Agreement (Utz Brands, Inc.)
Dispositions. The Borrower shall notSell, and shall not permit lease or make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedunneeded, obsolete unproductive or worn out property, whether now owned or hereafter acquired, in the Ordinary Course of Business to Persons;
(b) Dispositions of inventory in the Ordinary Course of Business;
(c) Dispositions of equipment or other assetsreal property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property for use in the Ordinary Course of Business, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property for use in the Ordinary Course of Business or assets no longer used (iii) the board of directors or useful 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 and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch Subsidiary;
(d) Dispositions of property by any disposition Subsidiary to the Borrower or to a wholly-owned Subsidiary of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition of property or assets or issuance of securities Dispositions comprising transactions expressly permitted by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 7.04(a) through (d);
(f) to the extent qualifying for non-recognition under Section 1031 exclusive licenses of IP Rights in the Code, or any comparable or successor provision, any exchange Ordinary Course of like property (excluding any boot thereon) Business and substantially consistent with past practice for use in a Similar Businessterms not exceeding five years;
(g) the leasesale, assignment without recourse and in the Ordinary Course or sub-lease Business, of accounts receivable due from Federal, state or other Governmental Authority arising in the Ordinary Course of Business (and not as part of any real bulk sale or personal property financing of receivables) in an amount not to exceed $25,000,000 in any fiscal year or $50,000,000 in the ordinary course of business;aggregate prior to the Maturity Date; and
(h) any issuance or sale other Dispositions of Equity Interests in, or Indebtedness or property (other securities of, an Unrestricted Subsidiary;
than accounts and notes receivable) not described in subsections (a) through (f) of this Section 7.05; provided (i) foreclosures on assets no Default or Event of Default exists at the time or would occur as a result thereof, and (ii) the aggregate consideration from such Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired received by the Borrower or any and its Subsidiaries, including aggregate cash received and the aggregate fair market value of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or subnon-licensing of intellectual cash property or other general intangibles in the ordinary course of business (other than exclusivereceived, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination shall not exceed 10% of the Borrower, are not material to the conduct of the business total assets of the Borrower and its Restricted Subsidiaries taken as (determined on a whole;
(oconsolidated basis in accordance with GAAP) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time end of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent recently ended fiscal year; provided that any Disposition pursuant to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowersubsections (a) through (g) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and this Section 7.05 shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Dispositions. The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale property in the ordinary course of business;
(b) Dispositions of inventory, Permitted Investments, equipment or immaterial assets in the disposition ordinary course of all business and the leasing or substantially all subleasing of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(hc) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any issuance Subsidiary to the Company or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted to a Subsidiary;
(ie) foreclosures on assets or Dispositions of assets required permitted by Law, governmental regulation or any Governmental Authorityparagraph 6C;
(jf) sales of accounts receivable, or participations therein, in connection with any Receivables Facility Restricted Payments permitted to be incurred pursuant to Section 7.02(b)(19)by paragraph 6G and investments permitted by paragraph 6E;
(kg) any financing transaction (excluding by way Dispositions of a Sale and Lease-Back Transaction) with respect to property built notes receivable or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles accounts receivable in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3including any discount and/or forgiveness thereof) years)or in connection with the collection or compromise thereof;
(mh) sales, transfers and other 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;
Dispositions and/or terminations (ni) the lapse or abandonment of intellectual property rights in the ordinary course of business whichof leases, in the reasonable good faith determination of the Borrowersubleases or licenses (including sublicenses), are not material or (ii) which relate to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeclosed facilities;
(oi) an issuance any expiration of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription any option agreement in respect of real or shareholder agreements, stock ownership plans personal property and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(pii) any surrender or waiver of contract contractual rights or the settlement, release, recovery on release or surrender of contract, tort contractual rights or other litigation claims of any kind;
(qincluding in tort) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(rj) the granting Dispositions of Liens not prohibited by this Agreementproperty subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(sk) Dispositions of Investments in any Swap Agreement of the type permitted under paragraph 6F;
(l) Dispositions by the Company and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as its Subsidiaries not otherwise permitted under this paragraph; provided that after giving effect thereto the aggregate fair market book value of all property Disposed of pursuant to this clause (determined, with respect to each l) during the 12 consecutive months immediately preceding such Disposition does not exceed 10% of Consolidated Tangible Assets as of the end of the fiscal quarter immediately preceding such Disposition, as of provided, however, that the time of aggregate purchase price paid within 180 days after any such DispositionDisposition for similar assets within the United States that are not subject to Liens (other than Permitted Encumbrances) of all such Dispositions does not exceed $5 millionfor borrowed money other than pursuant to this Agreement (before or after acquisition) will be deducted in determining this 10% limit; and
(tm) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrowercapital contribution) of the assets sold or otherwise disposed of; Permitted Receivables Facility Assets and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received Receivables Related Assets pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeQualified Receivables Facility.
Appears in 1 contract
Samples: Private Shelf Agreement (Saia Inc)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:except (without duplication):
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete surplus or worn out equipment property or other assets, or assets property that is no longer used or useful in for the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the BorrowerParent, CDI Vessel or any Subsidiary, whether now owned or hereafter acquired, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale case in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all inventory and Cash Equivalents, charters of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be madevessels, and is madeleases of equipment, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property each case in the ordinary course of business;
(c) Dispositions of property to the Parent, CDI Vessel or a Wholly Owned Subsidiary; provided that if the transferor of such property is the Parent, CDI Vessel, or a Subsidiary Guarantor, the transferee thereof must either be the Parent, CDI Vessel or a Subsidiary Guarantor;
(d) (i) Dispositions permitted by Section 7.04, and (ii) Restricted Payments permitted by Section 7.06;
(e) Dispositions in connection with any sale and leaseback transaction otherwise permitted hereunder in an amount not to exceed $10,000,000 in the aggregate for any fiscal year;
(f) Dispositions in the ordinary course of business, in one transaction or a series of related transactions, of assets (other than Equity Interests of Subsidiaries) of either Borrower or its Subsidiaries with a fair market value not exceeding $2,500,000 for each such Disposition and $2,500,000 in the aggregate for all such Dispositions in any fiscal year;
(g) [Intentionally left blank];
(h) any issuance or sale the Disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiaryassets received pursuant to Section 7.02(e)(ii);
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations therefor and other similar intellectual property;
(j) any Disposition of assets pursuant to (i) a condemnation, appropriation, seizure or similar taking or proceeding by a Governmental Authority or (ii) the requirement of, or at the direction of, a Governmental Authority;
(k) [Intentionally left blank];
(l) Dispositions of assets, other than exclusiveCollateral, worldconstituting non-wide licenses that are longer than three cash contributions to a joint venture to the extent such Investment is permitted pursuant to Section 7.02(g) (3) yearsfor the purpose of determining compliance with the limitations of such Section, the assets shall be valued at the value attributed thereto in the applicable joint venture agreement or, if greater, fair market value);
(m) sales, transfers and The exchange of any vessel (other dispositions than a vessel that is subject to a Vessel Mortgage) for any vessel of Investments equivalent value (including any cash or Cash Equivalents necessary in joint ventures order 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 arrangementsachieve an exchange of equivalent value);
(n) The Parent or any Subsidiary may Dispose of (including by means of a merger of such Subsidiary) the lapse or abandonment Equity Interests of intellectual property rights a Subsidiary (other than CDI Vessel); provided that (i) no less than all of the Equity Interests of the Parent and its Subsidiaries in the ordinary course applicable Subsidiary are Disposed of business whichconcurrently, (ii) all such Dispositions shall be made for fair market value and (iii) the Subsidiary so Disposed of shall not, on an aggregate basis with all other Subsidiaries Disposed of pursuant to this Section 7.05(n), account for (y) assets having an aggregate book value of greater than 5% of the consolidated total assets of the Parent and its Subsidiaries or (z) Consolidated EBITDA exceeding 5% of the Consolidated EBITDA of the Parent, in the reasonable good faith determination each case determined as of the Borrower, are not material to the conduct end of the business of the Borrower and its Restricted Subsidiaries taken as a wholefiscal quarter most recently ended;
(o) an issuance The granting of Equity Interests pursuant any Lien permitted hereunder and dispositions of property subject to benefit plans, employment agreements, equity plans, stock subscription any such Lien that is transferred to the lienholder or shareholder agreements, stock ownership plans and other similar plans, policies, contracts its designee in satisfaction or arrangements established in the ordinary course settlement of business or approved by the Borrower in good faithsuch lienholder’s claim;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures assets (other than a vessel that is subject to the extent any such joint venture constitutes a Restricted SubsidiaryVessel Mortgage) so long as the aggregate fair market value not otherwise permitted under this Section 7.05; provided that (determined, with respect to each such Disposition, as of 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 such Dispositions does not exceed $5 million; and
assets Disposed of in reliance on this clause (tp) Dispositions (including by way of any Sale from and Lease-Back Transaction) after the Closing Date, together with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market aggregate book value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and of all Subsidiaries Disposed of pursuant to clause (2n) except in above since the case of a Permitted Asset SwapClosing Date, at least 75shall not exceed 15% of the consideration therefor received by total book value of all assets of the Borrower or such Restricted Subsidiary, Parent and its Subsidiaries as of the case may be, is in end of the form most recent fiscal quarter of cash or Cash Equivalentsthe Parent; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligationshowever, that are assumed by the transferee of any such assets Disposition pursuant to clauses (or are otherwise extinguished by the transferee in connection with the transactions relating to such Dispositiona) through (e), (j)(ii), (m), (n) and (p) shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value. For purposes of determining compliance with this Section 7.05, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item any property Disposed of Designated Nonfor consideration not consisting entirely of cash shall be the sum of the cash portion of the consideration, if any, and the fair market value of the non-Cash Consideration being cash portion of the consideration, as reasonably determined by the Parent in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposefaith.
Appears in 1 contract
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for (a) any disposition Transfers of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful Inventory in the business ordinary course of the Borrower and the Restricted Subsidiaries business; (b) Transfers of worn-out or obsolete Equipment that is, in the reasonable opinion judgment of the Borrower, in each case, no longer economically practicable to maintain or use in the ordinary course of business of Borrower; (c) Transfers consisting of Permitted Liens and Permitted Investments; (d) Transfers consisting of Borrower’s or any disposition its Subsidiaries’ use or transfer of inventory money or goods Cash Equivalents in the ordinary course of business and in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (e) Transfers consisting of the sale or issuance of any stock, partnership, membership, or other assetsownership interest or other equity securities of Borrower that would not otherwise result in an Event of Default under this Agreement; (f) held Transfers of non-exclusive licenses for sale the use of the property of Borrower or its Subsidiaries in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause ; (g) thereofany Transfer of Borrower Purchased Customer Loans so long as (i) such Transfer is made in accordance with the terms and conditions of a purchase agreement entered into between the Permitted Warehouse SPV and Borrower consistent with industry norms (each a “Purchase Agreement”);
, (cii) no Default or Event of Default has occurred and is continuing or would result from such Transfer, (iii) all cash proceeds from the sale of such Borrower Purchased Customer Loans are received by Borrower concurrently with such sale, and (iv) the making of any Restricted Payment purchase price shall be paid pursuant to the Purchase Agreement in cash and, as applicable, pursuant a capital contribution that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
by clause (dh) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange definition of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
“Permitted Investments”; (h) any issuance or sale Transfer of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
Borrower Purchased Customer Loans to Persons that are not Permitted Warehouse SPVs so long as (i) foreclosures on assets no Default or Dispositions Event of assets required by LawDefault has occurred and is continuing or would result from such Transfer, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2ii) except in the case of a Permitted Asset Swap, at least 75not less than 95% of the consideration therefor proceeds from the sale of such Borrower Purchased Customer Loans are received in cash by the Borrower or concurrently with such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalentssale; provided, that the amount of:
and (i) any liabilities other Transfer so long as (as shown on the Borrower’s most recent consolidated balance sheet or i) in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetany fiscal year, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet Transfer or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date Transfers do not exceed an aggregate amount of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) $1,000,000.00 and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes no Default or other obligations Event of Default has occurred and is continuing or securities received by the Borrower or any such Restricted Subsidiary would result from such transferee that are converted by the Borrower Transfer or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeTransfers.
Appears in 1 contract
Samples: Loan and Security Agreement (Spartan Acquisition Corp. II)
Dispositions. The Borrower shall and Operating will not, and shall not nor will the Borrower and/or Operating permit any of its Restricted Subsidiaries other Credit Party to, consummate sell, lease, transfer, abandon or otherwise dispose of any Dispositionasset, exceptother than:
(a) any disposition dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property or other assets, or assets property that is no longer used necessary or useful in to the business proper conduct of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerits business, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) dispositions of equipment to the extent that (i) such equipment is exchanged for credit against the purchase price of similar replacement equipment or (ii) within 180 days after such disposition the proceeds of all or substantially all such disposition are applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)such replacement equipment;
(c) the making sale in the ordinary course of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentbusiness of Hydrocarbons produced from the Credit Parties’ Mineral Interests;
(d) Asset Dispositions and other dispositions of Mineral Interests; provided, that all mandatory prepayments required by Section 2.04 in connection with such Asset Disposition (after giving effect to any disposition adjustment pursuant to Section 2.13(d) for such Asset Disposition) are made within one Business Day of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 millionclosing thereof;
(e) any a 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; provided, that any transfer from a Loan Party shall be to another Loan Partybetween Credit Parties;
(f) to the extent qualifying for non-recognition under Section 1031 dispositions of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use Equity Interests in a Similar BusinessUnrestricted Subsidiaries;
(g) the lease, assignment or sub-lease creation of any real or personal property in the ordinary course of businessa Permitted Encumbrance;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the disposition, settlement, release, recovery on release or surrender of contract, tort or other claims of any kind;
(qi) dispositions any disposition of defaulted receivables in connection with the compromise, settlement or collection thereof that arose in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsfor collection;
(rj) the granting during any period of Liens not prohibited by this Agreement;
(s) Dispositions twelve consecutive months, dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the assets with an aggregate fair market value of less than $10,000,000;
(determined, with respect to each such Disposition, as of the time of such Dispositionk) of all such Dispositions does not exceed $5 milliona Restricted Payment permitted by Section 7.02;
(l) dispositions permitted by Section 7.04; and
(tm) Dispositions an Investment permitted by Section 7.08. In no event will any Credit Party (including by way other than the Borrower) sell, transfer or dispose of, or permit any other Credit Party (other than the Borrower) to sell, transfer or dispose of any Sale and Lease-Back Transaction) with respect to which (1) capital stock of, or other equity interest in, any Restricted Subsidiary of the Borrower nor will the Borrower or Operating permit any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value other Credit Party (as determined in good faith by other than the Borrower) to issue or sell any Equity Interest of a Credit Party (other than the assets sold or otherwise disposed of; and Borrower) to any Person other than a Credit Party unless (2i) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetdisposition, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith disposition is otherwise permitted by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) this Section 7.05 and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary remaining ownership in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of dispositionPerson, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith would be an Investment permitted by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSection 7.08.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents worn out, excess, surplus or Investment Grade Securities idle property or damaged, obsolete or worn out equipment or other assets, or assets property no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowersuch Person, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Borrower or Restricted Subsidiary to any Borrower or Restricted Subsidiary;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions made as part of the Foreign Finance Company Plan;
(g) Dispositions by the Company and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that at the time of such Disposition, (i) no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (g) (after giving effect to such Disposition) after the Closing Date shall not exceed an amount equal to 35% of Consolidated Total Assets at the time of such Disposition and (iii) the aggregate book value of all property Disposed of in reliance on this clause (g) (after giving effect to such Disposition) after the Closing Date in a single Disposition transaction shall not exceed an amount equal to 20% of Consolidated Total Assets at the time of such Disposition;
(h) non-exclusive licenses or sublicenses of IP Rights in the ordinary course of business and substantially consistent with past practice, and leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Company or any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiaryits Restricted Subsidiaries;
(i) foreclosures on assets or Dispositions of non-core assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, acquired in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired Permitted Acquisition by the Borrower Company or any of its Restricted Subsidiaries after within 18 months of such Permitted Acquisition; provided that such non-core assets, in the Closing Dateaggregate, do not exceed 40% of the consolidated net assets (measured using the definition of “Consolidated Net Assets”mutatis mutandis and measured as of the date of such Permitted Acquisition) acquired pursuant to such Permitted Acquisition;
(lj) 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 Company or any of its Restricted Subsidiaries;
(k) Dispositions of property constituting the making of Investments permitted under Section 7.02 and Dispositions of property constituting the making of Restricted Payments permitted by Section 7.06;
(i) the licensing or sub-licensing sale of intellectual property or other general intangibles past due accounts receivable in the ordinary course of business consistent with the practices of similarly situated companies and (other than exclusive, world-wide licenses that are longer than three (3ii) years);Dispositions made as part of a Permitted Receivables Transaction; and
(m) salesSale Leaseback Transactions permitted by Section 7.17. provided, transfers and other dispositions of Investments in joint ventures to the extent required byhowever, 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests that any Disposition pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
clauses (pa) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
through (qm) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Samples: Credit Agreement (Mastec Inc)
Dispositions. The Borrower shall notMake any Disposition or enter into any agreement to make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04 and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition7.06), except:
(a) any disposition Dispositions of cashsurplus, Cash Equivalents or Investment Grade Securities or damagedobsolete, obsolete used or worn out equipment property or other assetsproperty that, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion judgment of the Borrower, is no longer useful in each caseits business (but excluding any real property);
(i) Dispositions of inventory, equipment or accounts receivable in the ordinary course of business and (ii) Dispositions of accounts receivable in connection with a factoring facility in an aggregate outstanding principal amount not to exceed $25,000,000 at any time entered into by a non-Loan Party Restricted Subsidiary undertaken consistent with past practice or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) the disposition of all or substantially all Dispositions of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentset forth on Schedule 7.05;
(d) any disposition Dispositions of assets cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property otherwise in the ordinary course of business;
(he) any issuance or sale Dispositions of Equity Interests in, or Indebtedness or other securities of, an Unrestricted SubsidiaryReceivables Assets pursuant to Permitted Securitization Programs;
(if) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(lA) the licensing or sub-licensing sale of intellectual property or other general intangibles defaulted receivables in the ordinary course of business and not as part of a Permitted Securitization Program and (other than exclusive, world-wide licenses that are longer than three (3B) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproceeding;
(rg) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in licensing, sublicensing and the cross-licensing arrangements involving any technology or other intellectual property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted SubsidiarySubsidiary 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;
(h) 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 the Borrower or a Restricted Subsidiary as the case may belessor, receives 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 that have been subject to a casualty event or act of god;
(k) if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration at the time of 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 by the Borrower) of the assets sold or otherwise disposed of; and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or for such Restricted Subsidiary, as the case may be, is Dispositions undertaken pursuant to this Section 7.05(k) shall be paid in the form of cash or Cash Equivalents; provided, that provided that, for purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(iA) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetsecurities, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheetnotes, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities assets received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash EquivalentsEquivalents within 180 days of the receipt thereof, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), received in each case, within one hundred that conversion;
(B) any liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and eighty (180) days following as a result of which the receipt thereof, Borrower or such Restricted Subsidiary is released from further liability; and
(iiiC) any Designated Non-Cash Consideration received by the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Disposition having an Disposition; provided that the quantity equal to (1) the aggregate fair market valuevalue 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 (iiiC) that is at that time outstanding minus (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a2) the amount of the Net Proceeds previously realized in cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of from prior Designated Non-Cash Consideration being determined shall not exceed $25,000,000;
(l) any Investment permitted pursuant to Sections 7.02(l), 7.02(m) or 7.02(p), which constitutes a Disposition;
(m) Dispositions that do not constitute Asset Sales;
(n) 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 good faith a Similar Business;
(o) (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of 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;
(p) the unwinding or termination of any Hedging Obligations or Cash Management Obligations;
(q) the sale of assets by the Borrower and measured at its Restricted Subsidiaries consisting of Real Property solely to the time received extent that such Real Property is not necessary for the normal conduct of operations of the Borrower and without giving effect its Restricted Subsidiaries; and
(r) Dispositions between a Loan Party and a non-Loan Party Restricted Subsidiary to subsequent changes in value, shall, in each case, the extent such Disposition would be deemed to be cash for purposes of this provision and for no other purposepermitted by Section 7.02(k).
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashused, Cash Equivalents or Investment Grade Securities or damagedworn out, obsolete or worn out equipment surplus property by the Borrowers or other assets, or assets no longer used or useful in the business any of the Borrower and the Restricted their respective Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition the abandonment or transfer allowance to lapse or expire or other Disposition of Intellectual Property in the ordinary course of business that is, in the reasonable judgment of the Borrowers, no longer useful in the conduct of the Borrowers and their Subsidiaries taken as a whole;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of equipment to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are reasonably promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition Dispositions of property or assets or issuance of securities by a Restricted any Subsidiary to the Borrower Borrowers or by the Borrower or to a Restricted Wholly-Owned Subsidiary to another Restricted Subsidiaryof Holdings; provided, that any transfer from if the transferor of such property is a Loan Party shall Party, the transferee thereof must be to another Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) to Dispositions by the extent qualifying for non-recognition under Section 1031 Borrowers and their respective Subsidiaries of fixed assets with a Fair Market Value, on any date of determination, not in excess of 25% of Consolidated Total Assets in the Code, or any comparable or successor provision, any exchange aggregate as of like property (excluding any boot thereon) for use in a Similar Businesssuch date;
(g) so long as no Default or Event of Default shall occur and be continuing, the lease, assignment or sub-lease grant of any real option or personal property other right to purchase any asset in a transaction that would be permitted under the ordinary course provisions of businessthis Section 7.05;
(h) any issuance or sale assignments, licenses, sublicenses of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Intellectual Property in the ordinary course of business (other than exclusiveand in accordance with the applicable Collateral Documents; provided, worldhowever, that any license or sublicense of intellectual property shall be on a non-wide licenses that are longer than three (3) years)exclusive basis;
(mi) sales or discounts (without recourse) of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(j) sales, transfers and other dispositions of Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between arrangement between, the joint venture Joint Venture parties set forth in joint venture Joint Venture arrangements and similar binding arrangements;
(nk) the lapse transfers of property subject to casualty or abandonment condemnation events upon receipt of intellectual property rights Net Insurance/Condemnation Proceeds in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholerespect thereof;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(sl) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith assets by the BorrowerBorrowers and their Subsidiaries not otherwise permitted under this Section 7.05; provided, that (i) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee respect of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to Disposition shall be satisfied for cash or Cash Equivalents and (to ii) at the extent time of the cash any such Disposition, no Default or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, Event of Default shall exist or would result from such Disposition; and
(iiim) Dispositions constituting Investments permitted by Section 7.03, provided, however, that any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause Section 7.05(b), (iii) that is at that time outstanding c), (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Considerationf), up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (bl) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, shall be deemed to be cash for purposes of this provision and for no other purposeFair Market Value.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Warrior Met Coal, LLC)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for (a) any disposition Transfers of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful Inventory in the business ordinary course of the Borrower and the Restricted Subsidiaries business; (b) Transfers of worn-out or obsolete Equipment that is, in the reasonable opinion judgment of the Borrower, in each case, no longer economically practicable to maintain or use in the ordinary course of business of Borrower; (c) Transfers consisting of Permitted Liens and Permitted Investments; (d) Transfers consisting of the Borrower’s or any disposition its Subsidiaries use or transfer of inventory money or goods Cash Equivalents in the ordinary course of business in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (e) Transfers consisting of the sale or issuance of any stock, partnership, membership, or other assetsownership interest or other equity securities of Borrower that would not otherwise result in an Event of Default under this Agreement; (f) held Transfers of non-exclusive licenses for sale the use of the property of Borrower or its Subsidiaries in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause ; (g) thereofany Transfer of Borrower Purchased Customer Loans so long as (i) such Transfer is made in accordance with the terms and conditions of a purchase agreement entered into between the Permitted Warehouse SPV and Borrower consistent with industry norms (each a “Purchase Agreement”);
, (cii) no Default or Event of Default has occurred and is continuing or would result from such Transfer, (iii) all cash proceeds from the sale of such Borrower Purchased Customer Loans are received by Borrower concurrently with such sale, and (iv) the making of any Restricted Payment purchase price shall be paid pursuant to the Purchase Agreement in cash and, as applicable, pursuant a capital contribution that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
by clause (dh) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange definition of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
“Permitted Investments”; (h) any issuance or sale Transfer of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
Borrower Purchased Customer Loans to Persons that are not Permitted Warehouse SPVs so long as (i) foreclosures on assets no Default or Dispositions Event of assets required by LawDefault has occurred and is continuing or would result from such Transfer, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2ii) except in the case of a Permitted Asset Swap, at least 75not less than 95% of the consideration therefor received by proceeds from the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date sale of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that Purchased Customer Loans are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection cash by Borrower concurrently with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposesale.
Appears in 1 contract
Samples: Loan and Security Agreement (Sunlight Financial Holdings Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of Disposition or enter into any agreement to make any Disposition (other than an agreement that provides by its Restricted Subsidiaries to, consummate any Dispositionterms that a condition to consummation thereof is that such Disposition be permitted under this Agreement), except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete unusable or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property to the extent that (i) such property is exchanged for credit against the purchase price of Equity Interests in, similar replacement property or Indebtedness or other securities of, an Unrestricted Subsidiary(ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(i) foreclosures on assets or Dispositions of assets required property by Lawany Subsidiary to the Borrower or to a Loan Party, governmental regulation or any Governmental Authority;
(jii) sales Dispositions of accounts receivable, or participations therein, in connection with any Receivables Facility property between non-Loan Parties and (iii) Dispositions from a Loan Party to a Subsidiary that is not a Loan Party to the extent such Dispositions would be permitted to be incurred pursuant to as an Investment under Section 7.02(b)(197.03(c)(iv);
(ke) any financing transaction Dispositions permitted by Section 7.04 (excluding by way of a Sale and Lease-Back Transactionother than subsection (d) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Datethereof);
(lf) the licensing Dispositions consisting of licenses or sub-licensing of intellectual property sublicenses permitted under Section 7.01(n) or other general intangibles (o);
(g) abandonment or termination in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment items of intellectual property rights and licenses of intellectual property (excluding any Material Contract) that are not individually or in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not aggregate material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeSubsidiaries;
(oh) an issuance Dividends in compliance with Section 7.06;
(i) any sale, transfer, assignment or other disposition resulting from any condemnation of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription any assets of any Loan Party;
(j) dispositions or shareholder agreements, stock ownership plans use of cash and other similar plans, policies, contracts or arrangements established Cash Equivalents in the ordinary course of business or approved by the Borrower in good faithbusiness;
(pk) any surrender dispositions, discounts or waiver forgiveness of contract rights or the settlement, release, recovery on or surrender accounts receivable of contract, tort or other claims of any kind;
(q) dispositions of receivables financially troubled debtors in connection with the compromise, settlement collection or collection compromise thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(rl) transfers of assets as non-cash consideration for an Investment to the granting of Liens not prohibited by this Agreementextent permitted under Section 7.03(h) or (i);
(sm) sales of non-core assets acquired in connection with an acquisition permitted under Section 7.03;
(n) Dispositions of Investments in by the Borrower and the property of joint ventures its Subsidiaries not otherwise permitted under this Section 7.05; provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all such Dispositions does property Disposed of in reliance on this clause (k) in any fiscal year shall not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; 250,000 and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by price for such asset shall be paid to the Borrower or such Restricted SubsidiarySubsidiary solely in cash; and
(o) Dispositions for at least 75% cash of businesses of the Company on the Closing Date that do not use the “Earth Balance”, as “Smart Balance” or “Smart Beat” trademark or technology and do not use any technology that is subject to the case may be, is in the form of cash or Cash EquivalentsBrandeis License Agreement; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligationshowever, that are assumed by the transferee of any such assets Disposition pursuant to Sections 7.05(c) through (or are otherwise extinguished by the transferee in connection with the transactions relating to such Dispositiono) and shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Dispositions. The Borrower shall notNo Loan Party shall, and no Loan Party shall not permit any of its Restricted Subsidiaries to, consummate convey, sell, rent, lease, sublease, mortgage, license, transfer or otherwise dispose of (collectively, “Transfer”) any Dispositionof the Collateral or any Intellectual Property, except:
except for the following (collectively, “Permitted Dispositions”): (a) sales of inventory in the ordinary course of business, (b) dispositions by a Loan Party or any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or its Subsidiaries of tangible assets that are no longer used or useful in the business of such Loan Party or Subsidiary for cash and fair value so long as (i) no Default or Event of Default exists at the Borrower time of such disposition or would be caused after giving effect thereto and (ii) the Restricted Subsidiaries fair market value of all such assets disposed of does not exceed $100,000 in the reasonable opinion any calendar year, and (c) non-exclusive licenses and licenses that could not result in a legal transfer of title of the Borrowerlicensed property but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discreet geographical areas outside of the United States, in each case, in case for the ordinary course use of business or any disposition or transfer of inventory or goods (or other assets) held for sale Loan Party’s Intellectual Property in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant , so long as, with respect to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be madeeach such license, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets no Default or Dispositions Event of assets required by LawDefault has occurred and is continuing at the time of such Transfer, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(lii) the licensing or sublicense constitutes an arms-licensing of intellectual property or other general intangibles length transaction in the ordinary course of business (other than exclusiveand in the case of an exclusive license, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments made 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 lapse or abandonment of intellectual property rights connection with a bona fide corporate collaboration in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(pboard of directors of the applicable Loan Party) any surrender and the terms of which, on their face, do not provide for a sale or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims assignment of any kind;
Intellectual Property and do not restrict such Loan Party’s ability to pledge, grant a security interest in or Lien on, or assign or otherwise Transfer any Intellectual Property, (qiii) dispositions the applicable Loan Party delivers fifteen (15) days prior written notice and a brief summary of receivables the terms of the license to Agent, (iv) the applicable Loan Party delivers to Agent copies of the final executed licensing documents in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as license promptly upon consummation of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; license and (2v) except in the case of a Permitted Asset Swapall royalties, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes milestone payments or other obligations or securities received by proceeds arising from the Borrower or any such Restricted Subsidiary from such transferee that licensing agreement are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required paid to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) a deposit account that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith governed by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposean Account Control Agreement.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assetssurplus property, whether now owned or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerhereafter acquired, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such 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 be a Loan Party other than Holdings or F&C;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions constituting non-exclusive licenses of IP Rights in the ordinary course of business;
(g) the surrender or waiver of contractual rights or settlement, release or surrender of any contract or other litigation claims relating to ordinary course business operations and not interfering in any material respect with the ordinary conduct of business of the Loan Parties;
(h) to the extent constituting a Disposition, the granting of any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted SubsidiaryPermitted Lien on any property;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles receivable arising in the ordinary course of business in connection with the collection or compromise thereof and not as part of any financing transaction;
(j) leases of property owned by any Loan Party (other than exclusiveHoldings or F&C), world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures to the extent required byfee, or made pursuant tosubleases of property leased by any Loan Party, customary buy/sell arrangements between in each case, to franchisees or licensees for the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) the lapse or abandonment purpose of intellectual property rights operating a Del Taco Restaurant thereon, entered into in the ordinary course of such Loan Party’s business whichin an arm’s length transaction and provided that any such lease or sublease shall provide that such lease, in or sublease, and the reasonable good faith determination of tenant’s or subtenant’s and the Borrowertenant’s rights thereunder, are not material subject and subordinate in all respects to the conduct Collateral Documents thereon and to the Lien thereof;
(k) leases or subleases of property owned or leased by any Loan Party (other than Holdings or F&C), and not necessary to the business of the Borrower Loan Parties, to Persons and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plansfor purposes other than those permitted in Section 7.05(j), employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established entered into in the ordinary course of such Loan Party’s business or approved by in an arm’s length transaction and provided that any such lease shall provide that such lease, and the Borrower tenant’s rights thereunder, are subject and subordinate in good faithall respects to the Collateral Documents and to the Lien thereof;
(pl) any surrender discounts or waiver forgiveness of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof accounts receivable in the ordinary course of business or in bankruptcy connection with collection or similar proceedings compromise thereof and exclusive of factoring or similar arrangementsfor which adequate reserves have been established;
(rm) the granting of Liens not prohibited by this AgreementSale-Leaseback Transactions permitted pursuant to Section 7.19;
(sn) 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
(o) Dispositions of Investments Unit Locations and sales of equipment and inventory in and connection with the property refranchising of joint ventures Unit Locations; provided, that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) of all immediately after giving effect to such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) Disposition, the Borrower and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 7.11(b) and shall have a Consolidated Total Lease Adjusted Leverage Ratio no greater than 4.50:1.00 (such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or any Restricted Subsidiary, (b) as the case may be, receives consideration at the time of though such Disposition at least equal to the fair market value (had been consummated as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; first day of the fiscal period covered thereby), (iii) such Disposition is consummated on an arm’s length basis for fair consideration, (iv) such Unit Locations were listed on Schedule 7.05(o) as of the Fourth Amendment Effective Date, and (2v) except in the case of a Permitted Asset Swap, at least 75% of the consideration received therefor received by the Borrower or such Restricted SubsidiarySubsidiary shall be in the form of cash or Cash Equivalents;
(p) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, as no Event of Default shall exist or would result from such Disposition, (ii) the case may beaggregate book value of all property Disposed of in reliance on this clause (p) shall not exceed (x) $20,000,000 in any fiscal year or (y) $60,000,000 following the Fourth Amendment Effective Date, is and (iii) at least 75% of the consideration received therefor by the Borrower or such Subsidiary shall be in the form of cash or Cash Equivalents; providedprovided further, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date case of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date Dispositions of such balance sheet, as determined in good faith by the Borrower) Unit Locations and sales of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee equipment and inventory in connection with the transactions relating refranchising of Unit Locations, immediately after giving effect to such Disposition) and for which , the Borrower and all its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 7.11(b) and shall have a Consolidated Total Lease Adjusted Leverage Ratio no greater than 4.50:1.00 (such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required compliance to be satisfied for cash or Cash Equivalents (determined on the basis of the financial information most recently delivered to the extent Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such Disposition had been consummated as of the cash or Cash Equivalents receivedfirst day of the fiscal period covered thereby); provided, in each casehowever, within one hundred and eighty (180that any Disposition pursuant to Section 7.05(a) days following the receipt thereof, and
(iiithrough Section 7.05(p) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate shall be for fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Dispositions. The Borrower shall Such Loan Party will not, and shall will not permit any of its Restricted respective Subsidiaries to, consummate Dispose of any Disposition, of its assets except:
(a) issuances of Qualified Equity Interests by (i) any disposition Wholly-Owned Subsidiary of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowera Loan Party to a Loan Party, in each casecase subject to the Collateral and Guarantee Requirement and Section 2.7(b)(i)(B);
(b) the sale, lease, rental, licensing or other dispositions of Inventory (including hardware and software) in the ordinary course of business including transfers of Inventory under trial evaluation arrangements in contemplation of a sale, lease or license; provided that the aggregate fair market value of Inventory leased or under trial evaluation arrangements in contemplation of a sale, lease or license shall not exceed $1,000,000 at any disposition one time;
(c) the use or transfer of inventory money, cash or goods Cash Equivalents in a manner that is not prohibited by the terms of this Credit Agreement or the other Loan Documents;
(d) the licensing and sublicensing of patents, trademarks, copyrights, and other intellectual property and intellectual property rights in the ordinary course of business, and the leasing and subleasing of any other property;
(e) the granting of Liens permitted hereunder and the other transactions permitted by Section 7.2;
(f) any Casualty Event and the Disposition of any property subject thereto;
(g) the abandonment, cancellation or lapse of issued patents, registered trademarks and other assetsregistered 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 Lender and (ii) held 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 (i)) for sale at least fair market value, so long as (A) no Event of 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 (it being understood that notes and similar obligations maturing within 90 days will be considered cash) and is paid at the time of the closing of such sale, and (C) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.7(b)(i)(A);
(i) Dispositions of assets acquired by the Borrower and its Subsidiaries pursuant to a Permitted Acquisition consummated within 24 months of the date of such Permitted Acquisition;
(j) any trade in of equipment in exchange for other equipment in the ordinary course of business;
(bk) the disposition unwinding or terminating of all hedging arrangements or substantially all of the assets of transactions contemplated by any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)Swap Agreement which are not prohibited hereunder;
(cl) Dispositions of obsolete, damaged, worn out, used or surplus property, whether now owned or hereafter acquired, in the making ordinary course of any Restricted Payment that is permitted to be made, business and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition Dispositions of property no longer used or assets or issuance useful in the conduct of securities by a Restricted Subsidiary to the business of the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; providedany of its Subsidiaries, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property each case in the ordinary course of business;
(hm) any issuance Dispositions between Loan Parties or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiarybetween Subsidiaries that are not Loan Parties;
(in) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Excluded Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions up to an aggregate maximum 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole$500,000 by all Excluded Subsidiaries;
(o) an Sale and Leaseback transactions;
(p) Restricted Payments permitted by Section 7.8;
(q) the issuance of (i) restricted Equity Interests pursuant by the Borrower to benefit plansdirectors, employment agreementsofficers and other employees as part of its compensation scheme, equity plans, stock subscription or shareholder agreements, in connection with any other employee stock ownership plans and other similar plansplan, policiesemployee stock purchase program and/or officer, contracts director or arrangements established employee incentive plan, in each case in the ordinary course of business or approved (ii) any directors qualifying shares by the Borrower in good faith;any Foreign Subsidiary.
(pr) any surrender Dispositions or waiver discounts without recourse of contract rights accounts receivable that are distressed or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables uncollectible in connection with the compromise, settlement compromise or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to business. To the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, Lender waives the provisions of this Section 7.5 with respect to each the sale of any Collateral, or any Collateral is sold as permitted by this Section 7.5, such Disposition, as Collateral (unless sold to a Loan Party) shall be sold automatically free and clear of the time of such Disposition) of all such Dispositions does not exceed $5 million; Liens created by the Collateral Documents and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) expense of the assets sold or otherwise disposed of; and (2) except Loan Parties, the Lender shall take all reasonable actions any Loan Party reasonably requests in writing in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 1 contract
Dispositions. The Borrower shall notNo Loan Party shall, and no Loan Party shall not permit any of its Restricted Subsidiaries to, consummate convey, sell, rent, lease, sublease, mortgage, license, transfer or otherwise dispose of (collectively, “Transfer”) any Dispositionof the Collateral or any Intellectual Property, except:
except for the following (collectively, “Permitted Dispositions”): (a) sales of inventory in the ordinary course of business; (b) dispositions by a Loan Party or any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or its Subsidiaries of tangible assets that are no longer used or useful in the business of such Loan Party or Subsidiary for cash and fair value so long as (i) no Default or Event of Default exists at the Borrower time of such disposition or would be caused after giving effect thereto and (ii) the Restricted Subsidiaries fair market value of all such assets disposed of does not exceed $75,000 in any calendar year; (c) non-exclusive and exclusive licenses for the use of any Loan Party’s Intellectual Property in the reasonable opinion ordinary course of business, so long as, with respect to each such license, (i) no Default or Event of Default exists at the Borrowertime of such Transfer, in each case, (ii) the license constitutes an arms-length transaction in the ordinary course of business (and in the case of an exclusive license, made in connection with a bona fide corporate collaboration, distribution agreement or any disposition or transfer of inventory or goods (or other assets) held for sale similar arrangement in the ordinary course of business;
) and the terms of which, on their face, do not provide for a sale or assignment of any Intellectual Property, (biii) except with respect to distribution agreements limited to a discrete geographical area and for a term of less than five years that are entered into in the ordinary course of business, the applicable Loan Party delivers five (5) Business Days prior written notice and a brief summary of the terms of the license to Agent, (iv) upon the request of Agent or any Lender, the applicable Loan Party delivers to Agent copies of the final executed licensing documents in connection with the license promptly upon consummation of the license (provided that the applicable Loan Party shall use commercially reasonable efforts to ensure that the confidentiality provisions of such licensing documentation permit the applicable Loan Party to deliver such documents to Agent, and if the applicable Loan Party fails to obtain such permission, the applicable Loan Party shall deliver to Agent and Lenders such licensing documentation redacted only to the extent necessary to comply with such confidentiality restrictions), and (v) all royalties, milestone payments or other proceeds arising from the licensing agreement are paid to a deposit account that is governed by an Account Control Agreement; (d) licenses of Intellectual Property either (i) permitted under Section 7.7(c)(vii) or (ii) pursuant to the terms and conditions of the Olympus Agreements as they existed on the “Closing Date” (as defined in the Original Loan Agreement); (e) leases and placements of Celution Systems to physicians or other health care providers in accordance with clause (iii) of Section 6.6; and (f) the disposition sale by Borrower of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary related to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; providedSurgiWrap Thin Film business, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determinedas, with respect to each such Dispositionsale of assets, as (i) no Default or Event of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration Default exists at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swapsale, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalentssale constitutes an arms-length transaction with a non-affiliate, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by Borrower delivers to Agent copies of the final executed sale agreement upon consummation of the sale, (iv) Borrower or shall receive net cash proceeds of at least $1,000,000 from such Restricted Subsidiary in sale and (v) all such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant cash proceeds are paid to this clause (iii) a deposit account that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith governed by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposean Account Control Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Cytori Therapeutics, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property in arms-length transactions in the ordinary course of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiarybusiness;
(id) foreclosures on assets or Dispositions of assets required by Law, governmental regulation property to the Borrower or any Governmental Authorityto a Guarantor;
(je) sales of accounts receivable, or participations therein, in connection with any Receivables Facility Dispositions expressly permitted to be incurred pursuant to by Section 7.02(b)(19)7.04;
(kf) any financing transaction (excluding by way i) non-exclusive licenses of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles IP Rights in the ordinary course of business in connection with Franchise Agreements and substantially consistent with past practice, (other than exclusive, world-wide licenses ii) transfer of trademarks to the Joint Venture Entities and Subsidiaries that are longer than three not Loan Parties so long as such trademarks relate exclusively to the operation of Restaurants by such Person outside the United States and (3iii) years)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;
(mg) salesother Dispositions of assets in arms-length transactions so long as (1) at the time of such Disposition, transfers 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 other dispositions Cash Equivalents, and (1) the aggregate proceeds from assets Disposed of Investments in joint ventures pursuant 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 arrangementsthis clause (g) during any Fiscal Year shall not exceed $5,000,000;
(nh) the lapse sale or abandonment issuance of intellectual (i) any Subsidiary’s Equity Interests to the Borrower or any Guarantor or (ii) any Minority Interest;
(i) the leasing or sub-leasing of real property rights or entering into occupancy agreements with respect thereto, in each case, that would not materially interfere with the required use of such real property by the Borrower or its Subsidiaries and is in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower at arm’s length and its Restricted Subsidiaries taken as a whole;on market terms; 115
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(sj) Dispositions of Investments in and the property of joint ventures (restaurants or other assets acquired pursuant to the extent any such joint venture constitutes a Restricted Subsidiary) so long Permitted Acquisitions that have not been rebranded as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million“Noodles & Company” restaurant; and
(tk) Dispositions (including by way any transfer of assets of any Sale and Lease-Back Transaction) with respect Loan Party to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time Person other than a Loan Party in exchange for assets of such Disposition at least equal to the fair market value (Person as determined in good faith by the Borrower) part or all of the assets sold or otherwise disposed of; and (2) except purchase price in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsAcquisition; provided, that the amount of:
(i) any liabilities (as shown such exchange is consummated on the Borroweran arm’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetlength basis for fair consideration, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) the provisions relating to a Permitted Acquisition shall otherwise have been complied with, including with respect to Section 6.12 hereof; provided, however, that any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required Disposition pursuant to Section 7.05(a) through Section 7.05(k) shall be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (NOODLES & Co)
Dispositions. The U.S. Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets Property and Dispositions of property no longer used or useful in the conduct of the business of the U.S. Borrower and the Restricted Subsidiaries in the reasonable opinion of the BorrowerSubsidiaries, in each case, in the ordinary course of business, and grants of source code licenses of software in the ordinary course of business or any disposition or transfer consistent with past practice;
(b) Dispositions of inventory or goods (or other assets) held for sale and immaterial assets in the ordinary course of business;
(bc) Dispositions of Property to the extent that (i) such Property is exchanged for credit against the purchase price of similar replacement Property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement Property;
(d) any disposition Dispositions of assets Property (i) to the U.S. Borrower or issuance to a Restricted Subsidiary; provided that if the transferor of such Property is a Borrower or sale Subsidiary Guarantor, the transferee thereof must be a Borrower or Subsidiary Guarantor, (ii) to the extent such transaction constitutes an Investment permitted under Section 6.05 and (iii) consisting of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not non-Loan Parties to exceed $5 millionother non-Loan Parties;
(e) any disposition of property or assets or issuance of securities Dispositions permitted by a Restricted Subsidiary to the Borrower or Sections 6.03, 6.04 and 6.05 and Liens permitted by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 6.02;
(f) to the extent qualifying for non-recognition under Section 1031 Dispositions of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businesscash and Cash Equivalents;
(g) (i) Dispositions of accounts receivable in connection with the lease, assignment collection or sub-lease of any real or personal property compromise thereof and (ii) Dispositions in connection with vendor financing and receivables programs in the ordinary course of business;
(h) any issuance leases, subleases, licenses or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations thereinsublicenses, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles each case in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)and which do not materially interfere with the business of the U.S. Borrower and the Restricted Subsidiaries;
(mi) sales, transfers and of Property to the extent subject to Casualty Events or other dispositions condemnation events;
(j) Dispositions of Investments in in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(nk) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender after the Spin-Off Date, any Disposition of contract, tort or other claims of any kind;
Property; provided that (qi) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at least equal to the fair market value (as determined in good faith by the Borrower) a time when no Event of the assets sold Default exists), no Event of Default shall exist or otherwise disposed of; would result from such Disposition and (2ii) except in the case of a any Permitted Asset Swap, at least with respect to any Disposition pursuant to this clause (k), the U.S. Borrower or a Restricted Subsidiary shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, however, that for the amount of:
purposes of this clause (iii), each of the following shall be deemed to be cash: (A) any liabilities (as shown on the U.S. Borrower’s or such Restricted Subsidiary’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrowerthereto) of the U.S. 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 of any such assets (or are otherwise extinguished by with respect to the transferee in connection with the transactions relating to such Disposition) applicable Disposition and for which the U.S. Borrower and all such of the Restricted Subsidiaries shall have been validly released,
released by all applicable creditors in writing, (iiB) any notes or other obligations or securities received by the U.S. Borrower or any such Restricted Subsidiary from such transferee that are converted by the U.S. Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, ) within one hundred and eighty (180) 180 days following the receipt thereof, and
closing of the applicable Disposition and (iiiC) any Designated Non-Cash Consideration received by the U.S. Borrower or such Restricted Subsidiary in from such Disposition transferee having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iiiC) that is at that time outstanding (but less the amount outstanding, not in excess of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million50,000,000, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, shall be deemed to be cash consideration;
(l) any Restricted Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders; and
(m) Dispositions of the real property set forth on Schedule 6.11; and
(n) the Specified Dispositions; provided that (x) solely in the case of any Specified Disposition set forth in clause (ii) of the definition of “Specified Disposition”, the definitive agreement governing such Specified Disposition shall initially be entered into within twelve months of the Amendment No. 3 Effective Date and (y) within three months after each Specified Disposition, the Net Cash Proceeds of such Specified Disposition shall be applied to either (i) repay, prepay, redeem, repurchase, defease or otherwise satisfy any Indebtedness of the U.S. Borrower or any of its Restricted Subsidiaries in an amount such that the pro forma Total Net Leverage Ratio on such date does not exceed the Total Net Leverage Ratio as in effect immediately prior to the applicable Specified Disposition (without giving effect to any cash netting of the proceeds of the Specified Disposition) or (ii) to replace cash of the U.S. Borrower or any of its Restricted Subsidiaries used for the purposes of this provision and for no other purpose.described in clause (i);
Appears in 1 contract
Samples: Credit Agreement (CONDUENT Inc)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition or enter into any agreement to make any Disposition (other than as part of its Restricted Subsidiaries to, consummate any Dispositionor in connection with the transactions contemplated by the Loan Documents), except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedredundant, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the any Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Party;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition of assets Dispositions to the Company or issuance or sale of Equity Interests of any Restricted Subsidiary to the extent such Dispositions would be permitted under the Senior Facility Credit Agreement;
(e) Dispositions permitted by Sections 6.04 and 6.07 and Liens permitted by Section 6.01;
(f) Dispositions of property other than Collateral pursuant to sale-leaseback transactions; provided that the fair market value of all property so Disposed of after the Effective Date shall not exceed $250,000,000;
(g) Dispositions of cash and Cash Equivalents;
(h) 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 Company and its Restricted Subsidiaries;
(i) transfers of property as a result of Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section, the proceeds (net of costs associated with such Disposition) of which do not to exceed $1,000,000,000 in any transaction or series of related transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
aggregate; provided that (i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition) of all , no Default shall exist or would result from such Dispositions does not exceed $5 million; and
Disposition, and (t) Dispositions (including by way of any Sale and Lease-Back Transactionii) with respect to which (1) any Disposition pursuant to this clause for a purchase price in excess of $50,000,000, the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least Parties shall receive not less than 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents (in each case, free and clear of all Liens at the time received); provided, that provided for the amount of:
purposes of this clause (iii) any liabilities (as shown on the Borrower’s Companys most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date thereto) of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted SubsidiaryParty, 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 each Restricted Party shall have been validly released by all applicable creditors in writing shall be deemed to be cash; and (iii) the Net Proceeds shall be used to prepay Loans to the extent required by Section 2.08(b);
(k) Dispositions listed in Schedule 6.05(k) hereto;
(l) Dispositions of any such assets (or are otherwise extinguished by the transferee accounts receivable in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,Securitization Transactions or Dispositions of Excluded Receivables permitted by Section 6.15;
(iim) any notes swap of assets in exchange for services or other obligations assets in the ordinary course of business of comparable or securities received by the Borrower greater value or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (usefulness to the extent business of the cash or Cash Equivalents received), in each case, within one hundred Company and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market valueits Subsidiaries, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with as a subsequent sale or conversion of or collection on such Designated Non-Cash Considerationwhole, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being as determined in good faith by the management of the Company; and
(n) Dispositions pursuant to buy-sell arrangements or similar agreements between Lyondell China Holdings Limited of Ningbo ZRCC and Lyondell Chemical Company Ltd. provided that any Disposition of any property pursuant to this Section 6.05 (except pursuant to Section 6.05(e) and Section 6.05(i) and (i) and except for Dispositions (x) of Collateral from a Borrower to a Borrower and measured (y) of other property from a Loan Party or Transaction Party under the 2007 Securitization Facility to any other Loan Party or Transaction Party under the 2007 Securitization Facility) shall be for no less than the fair market value of such property at the time received of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and without giving 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 to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposethe foregoing.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Permitted Transfers;
(b) Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete damaged or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are reasonably promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith Dispositions permitted by the Borrower) not to exceed $5 millionSections 7.02, 7.03, 7.04 and 7.06;
(e) any disposition non-exclusive licenses of trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses and other intellectual property or assets or issuance rights in the ordinary course of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Partybusiness and substantially consistent with past practice;
(f) abandonment of trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses and other intellectual property that is no longer economically practicable to maintain or useful in the extent qualifying for non-recognition under Section 1031 conduct of the Code, or any comparable or successor provision, any exchange business of like property (excluding any boot thereon) for use in a Similar Businessthe Borrower and its Subsidiaries;
(g) the leasesales, assignment transfers or sub-lease other disposition of property that are a settlement of or payment in respect of any real property or personal casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property in or asset of the ordinary course of businessBorrower or any Material Subsidiary;
(h) any issuance involuntary loss, damage or sale destruction of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiaryproperty;
(i) foreclosures on assets any involuntary condemnation, seizure or Dispositions taking, by exercise of assets required by Lawthe power of eminent domain or otherwise, governmental regulation or any Governmental Authorityconfiscation or requisition of use of property;
(j) sales Dispositions of accounts receivableassets acquired by any Loan Party pursuant to Permitted Acquisitions consummated within 12 months of the date of the proposed Disposition so long as (i) the consideration received for the assets to be so disposed is at least equal to the fair market value of such assets, or participations therein, and (ii) the assets to be so disposed are not necessary in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)the business of the Loan Parties;
(k) any financing Disposition of fixed assets for fair market value, to the extent that (i) such property is exchanged for credit that is promptly applied to the purchase price of similar replacement property, or (ii) the proceeds of such Disposition are promptly applied to the purchase price of similar replacement property, in each case, in a transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired not prohibited by the Borrower or any terms of its Restricted Subsidiaries after the Closing Datethis Agreement;
(l) Dispositions of margin stock (as defined in Regulation U) at fair market value, but only to the licensing or sub-licensing extent that the value of intellectual property or other general intangibles in such margin stock would not exceed 25% of the ordinary course consolidated assets of business (other than exclusive, world-wide licenses that are longer than three (3) years)the Parent;
(m) sales, transfers and other dispositions Dispositions of Investments in in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) the lapse sales or abandonment Disposition of intellectual fixed assets (including intangible property rights related to such fixed assets) not otherwise permitted in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
clauses (oa) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
through (pl) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) above so long as made at fair market value and the aggregate fair market value of all assets disposed of in any fiscal year (determined, with respect to each such Disposition, as of including the time of such proposed Disposition) of all such Dispositions does would not exceed $5 million; and
(t) Dispositions (including by way of any Sale 5,000,000 individually and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except $10,000,000 in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is aggregate in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposefiscal year.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall Loan Parties will not permit Dispose of any of its Restricted Subsidiaries to, consummate any Disposition, assets except:
(a) any disposition Dispositions consisting of cashsales of marketable securities, Cash Equivalents or Investment Grade Securities or damagedloans, obsolete or worn out equipment or loan servicing rights, commodities, forwards, futures, derivatives and other assetsassets in connection with trading, or assets no longer used or useful in the business of the Borrower market making activities, loan origination and the Restricted Subsidiaries in the reasonable opinion of the Borrowersecuritization, structured products and other financial services activities, and real estate businesses, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale case in the ordinary course of business;
(b) the disposition of all or substantially all Dispositions by (i) any Subsidiary of the assets Borrower to the Borrower or any other Subsidiary and (ii) the Borrower to any, direct or indirect, wholly-owned Subsidiary of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof)the Borrower;
(c) the making use or transfer of any Restricted Payment money, cash or Cash Equivalents in a manner that is permitted to be made, and is made, under Section 7.05 not prohibited by the terms of this Credit Agreement or any Permitted Investmentthe other Loan Documents;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(e) any disposition of property or assets or issuance of securities by licensing and sublicensing on a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 exclusive basis of the Codepatents, or any comparable or successor provisiontrademarks, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the leasecopyrights, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business whichbusiness, and the leasing and subleasing of any other property;
(e) the granting of Liens permitted hereunder and the other transactions permitted by Section 7.2;
(f) any casualty event and the Disposition of any property subject thereto other than the Collateral Pool Properties;
(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 the such Loan Party’s reasonable good faith determination of the Borrowerbusiness judgment, are not material to economically desirable in the conduct of such Loan Party’s business or so long as such lapse is not materially adverse to the business interests of the Borrower Lenders and its Restricted Subsidiaries taken as a whole(ii) the expiration of patents in accordance with their statutory terms;
(oh) an issuance Dispositions made by any Subsidiary of Equity Interests pursuant to benefit plansa Loan Party, employment agreementsthat is not a Loan Party, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by pursuant to the Borrower in good faithbusiness judgment of such Subsidiary;
(pi) any surrender or waiver trade in of contract rights or the settlement, release, recovery on or surrender of contract, tort or equipment in exchange for other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof equipment in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 millionbusiness; and
(tj) Dispositions (including the unwinding or terminating of hedging arrangements or transactions contemplated by way any Swap Agreement which are not prohibited hereunder. To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of any Sale and Lease-Back Transaction) this Section 7.5 with respect to which (1) the Borrower sale of any Collateral, or any Restricted SubsidiaryCollateral is sold as permitted by this Section 7.5, as such Collateral (unless sold to a Loan Party) shall be sold automatically free and clear of the case may beLiens created by the Collateral Documents and, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) expense of the assets sold or otherwise disposed of; and (2) except Loan Parties, the Administrative Agent shall take all reasonable actions any Loan Party reasonably requests in writing in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 1 contract
Samples: Credit Agreement (Cantor Fitzgerald Income Trust, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except::
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property or other assets, or assets property no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerits Subsidiaries, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer business;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);;
(c) Dispositions of equipment or real property to the making extent that (i) such property is exchanged for credit against the purchase price of any Restricted Payment that is permitted similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to be made, and is made, under Section 7.05 or any Permitted Investment;the purchase price of such replacement property;
(d) Dispositions of property by any disposition Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of assets such property is a Guarantor, the transferee thereof must either be the Borrower or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 milliona Guarantor;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide exclusive licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are and substantially consistent with past practice for terms not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;exceeding five years;
(of) an issuance Disposition of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established Cash Equivalents in the ordinary course of business or approved by the Borrower in good faith;business;
(pg) any surrender Dispositions of owned or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof leased vehicles in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;business;
(rh) Disposition of leased real estate in the granting ordinary course of Liens not prohibited by this Agreement;business;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as no Default or Event of Default has occurred and is continuing, the ETC Disposition;
(j) all Dispositions made prior to the Second Amendment Effective Date (which Borrower represents and warrants were made in compliance with this Agreement, as in effect at the time of such Dispositions); and
(k) so long as no Default or Event of Default has occurred and is continuing, other Dispositions of property where the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does of property after the Second Amendment Effective Date is not exceed in excess of $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.7,500,000.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(ai) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale Group Company may sell Inventory in the ordinary course of business;
(bii) the disposition Dispositions of all obsolete, worn out, surplus, damaged, idled, unmerchantable or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be madeotherwise unsaleable assets, and is madewhether now owned or hereafter acquired, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(hiii) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(iv) Dispositions of property by any Loan Party or any Subsidiary to any 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 issuance Borrower and its Subsidiaries may liquidate, use or sale sell cash, Cash Equivalents and Foreign Cash Equivalents; 3616092.7 144
(vii) the Parent Borrower or any Subsidiary of any Borrower may sell or dispose of Equity Interests in, in the Parent Borrower or Indebtedness such Subsidiary to qualify directors where required by applicable Law or to satisfy other securities of, an Unrestricted Subsidiaryrequirements of applicable Law with respect to the ownership of Equity Interests in Foreign Subsidiaries;
(iviii) foreclosures on assets leases, subleases, licenses or Dispositions sublicenses of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)and which do not materially interfere with the business of the Group Companies;
(mix) sales, transfers and other dispositions of Investments in joint ventures property subject to Casualty Events upon receipt of 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 arrangementsNet Cash Proceeds of such Casualty Event;
(nx) the lapse or abandonment of intellectual property rights 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 Borrower and its Restricted Subsidiaries taken as a wholeGroup Companies;
(oxi) an issuance Dispositions by the Borrowers and their Subsidiaries not otherwise permitted under this Section 7.05; provided that (A) at least 75% of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription the consideration therefor is cash or shareholder agreements, stock ownership plans and other similar plans, policies, contracts Cash Equivalents; provided that the sum of (1) any liabilities (as shown on the Parent Borrower’s or arrangements established such Restricted Subsidiary’s most recent balance sheet or in the ordinary course notes thereto) of business the Parent Borrower or approved such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Revolving Credit Loans, that are assumed by the transferee of any such assets (or a third party on behalf of the transferee) and for which the Parent Borrower or such Restricted Subsidiary has been validly released by all creditors in good faith;
writing; (p2) any surrender or waiver of contract rights or the settlementsecurities, release, recovery on or surrender of contract, tort notes or other claims of any kind;
(q) dispositions of receivables in connection with obligations or assets received by the compromise, settlement Parent Borrower or collection thereof in such Restricted Subsidiary from such transferee that are converted by the ordinary course of business Parent Borrower or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Disposition; and (3) any Designated Noncash Consideration received by the Parent Borrower or such joint venture constitutes a Restricted SubsidiarySubsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (3) so long as that has not previously been converted to cash, not to exceed the greater of (x) $100,000,000 and (y) 6.0% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, 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, in each case, shall be deemed to be cash solely for purposes of this Section 7.05(xi) and for no other purpose; (B) in the case of Dispositions of any Collateral by the Loan Parties, the aggregate fair market value of all Collateral sold or otherwise disposed of in all such transactions in reliance on this clause (determined, with respect to each xi) shall not exceed (I) the greater of (1) $75,000,000 and (2) 5% of Consolidated Total Assets as of the date of such Disposition in any fiscal year of the Parent Borrower or (II) the greater of (1) $150,000,000 and (2) 10% of Consolidated Total Assets on the date of such Disposition, as of in the time of aggregate from and after the Restatement Effective Date; (C) such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, Person receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Parent Borrower) of the assets sold or otherwise disposed dispose of; (D) no Event of Default shall have occurred and be continuing immediately before or immediately after giving effect to such transaction; and (E) if any Inventory or Receivables of the Loan Parties is disposed of pursuant to this clause (xi) for consideration consisting of assets other than cash or Cash Equivalents (determined without regard to the immediately preceding proviso), Excess 3616092.7 145 Availability shall, immediately after giving effect to such Disposition, be no less than 30% of the lesser of (1) the Revolving Credit Facility and (2) except in the case Total Borrowing Base;
(xii) Dispositions of 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 a Permitted Asset Swap, discount customary for transactions of this type) and at least 7590% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents and (B) any such Factoring Arrangement constitutes a “true sale” transaction and not a financing transaction;
(xiii) transfers of condemned real property to the extent respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and 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;
(xiv) cancellations of intercompany Indebtedness among the Parent Borrower and its Subsidiaries;
(xv) the Parent Borrower may sell the Equity Interest, or all or substantially all of the cash assets, of Masonite (Africa) Limited;
(xvi) sales or Cash Equivalents received)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 each case, within one hundred and eighty (180) days following the receipt thereof, ordinary course of business; and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (axviii) the amount sale, transfer or disposition of the cash real property located in Easton, Hearne, Watseka, Los Banos, Sacramento, Farmington Hills, South Bend, Astatula, Ukaih, Limon/Guapiles, Hungary, Costa Rica and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeHedingham.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
: (a) any disposition of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant Dispositions to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
Affiliates (i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Inventory in the ordinary course Ordinary Course of business Business, (other than exclusive, world-wide licenses ii) that consist of the sale or discount in the Ordinary Course of Business of overdue accounts receivable that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables Eligible Accounts in connection with the compromise, settlement compromise or collection thereof in the ordinary course Ordinary Course of business or in bankruptcy or similar proceedings Business, and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiaryiii) so long as no Event of Default exists or is created thereby, of Cash Equivalents in the aggregate fair market value Ordinary Course of Business (determinedprovided that, with respect to in each of cases of clauses (i), (ii), and (iii), the Net Cash Proceeds from such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 millionDisposition shall be deposited in a Controlled Deposit Account); and
(tb) Dispositions in the Ordinary Course of Business of Equipment or fixed assets that are obsolete and worn out for so long as (including by way i) no Event of any Sale Default has occurred and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration is continuing at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2ii) except all proceeds thereof are applied in accordance with Section 2.06(b); (c) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other Intellectual Property rights in the case Ordinary Course of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsBusiness; provided, that the amount of:(d)
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or 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 footnotes thereto conduct of its business or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes the abandonment of patents, trademarks, copyrights, or other obligations intellectual property rights in the Ordinary Course of Business so long as in each case under clauses (i) and (ii), such lapse or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (abandonment is not adverse to the extent interests of the cash or Cash Equivalents receivedSecured Parties; (e) (i) Dispositions among the Loan Parties (other than Mexican Subsidiaries), in each case(ii) Dispositions by any Subsidiary of a Loan Party to any Loan Party (other than Mexican Subsidiaries), within one hundred and eighty (180) days following the receipt thereof, and
(iii) Dispositions by any Designated Non-Cash Consideration received by Mexican Subsidiary to any other Mexican Subsidiary; (f) the Borrower leasing or such Restricted Subsidiary subleasing of assets (other than sale and leaseback transactions prohibited under Section 8.15) in such Disposition having the Ordinary Course of Business; (g) Dispositions that constitute (i) an aggregate fair market valueInvestment permitted under Section 8.03, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ii) a Lien permitted under Section 8.02, (iii) that is at that time outstanding a merger, dissolution, consolidation or liquidation permitted under Section 8.04(a), or (but less the amount of any cash or Cash Equivalents received in connection with iv) a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.Restricted Payment permitted under Section 8.06;
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of Disposition or enter into any agreement to make any Disposition (other than an agreement that provides by its Restricted Subsidiaries to, consummate any Dispositionterms that a condition to consummation thereof is that such Disposition be permitted under this Agreement), except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damaged, obsolete unusable or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property to the extent that (i) such property is exchanged for credit against the purchase price of Equity Interests in, similar replacement property or Indebtedness or other securities of, an Unrestricted Subsidiary(ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(i) foreclosures on assets or Dispositions of assets required property by Lawany Subsidiary to the Borrower or to a Loan Party, governmental regulation or any Governmental Authority;
(jii) sales Dispositions of accounts receivable, or participations therein, in connection with any Receivables Facility property between non-Loan Parties and (iii) Dispositions from a Loan Party to a Subsidiary that is not a Loan Party to the extent such Dispositions would be permitted to be incurred pursuant to as an Investment under Section 7.02(b)(197.03(c)(iv);
(ke) any financing transaction Dispositions permitted by Section 7.04 (excluding by way of a Sale and Lease-Back Transactionother than subsection (d) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Datethereof);
(lf) the licensing Dispositions consisting of licenses or sub-licensing of intellectual property sublicenses permitted under Section 7.01(n) or other general intangibles (o);
(g) abandonment or termination in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment items of intellectual property rights and licenses of intellectual property (excluding any Material Contract) that are not individually or in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not aggregate material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeSubsidiaries;
(oh) an issuance Dividends in compliance with Section 7.06;
(i) any sale, transfer, assignment or other disposition resulting from any condemnation of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription any assets of any Loan Party;
(j) dispositions or shareholder agreements, stock ownership plans use of cash and other similar plans, policies, contracts or arrangements established Cash Equivalents in the ordinary course of business or approved by the Borrower in good faithbusiness;
(pk) any surrender dispositions, discounts or waiver forgiveness of contract rights or the settlement, release, recovery on or surrender accounts receivable of contract, tort or other claims of any kind;
(q) dispositions of receivables financially troubled debtors in connection with the compromise, settlement collection or collection compromise thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsbusiness;
(rl) transfers of assets as non-cash consideration for an Investment to the granting of Liens not prohibited by this Agreementextent permitted under Section 7.03(h) or (i);
(sm) sales of non-core assets acquired in connection with an acquisition permitted under Section 7.03;
(n) Dispositions of Investments in by the Borrower and the property of joint ventures its Subsidiaries not otherwise permitted under this Section 7.05; provided that (to the extent any such joint venture constitutes a Restricted Subsidiaryi) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all such Dispositions does property Disposed of in reliance on this clause (n) in any fiscal year shall not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; 500,000 and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by price for such asset shall be paid to the Borrower or such Restricted SubsidiarySubsidiary solely in cash; and
(o) Dispositions for at least 75% cash of businesses of the Company on the Closing Date that do not use the “Earth Balance”, as “Smart Balance” or “Smart Beat” trademark or technology and do not use any technology that is subject to the case may be, is in the form of cash or Cash EquivalentsBrandeis License Agreement; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligationshowever, that are assumed by the transferee of any such assets Disposition pursuant to Sections 7.05(c) through (or are otherwise extinguished by the transferee in connection with the transactions relating to such Dispositiono) and shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Dispositions. The Borrower shall notMake any Disposition or enter into any agreement to make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04 and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition7.06), except:
(a) any disposition Dispositions of cashsurplus, Cash Equivalents or Investment Grade Securities or damagedobsolete, obsolete used or worn out equipment property or other assetsproperty that, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion judgment of the Borrower, is no longer useful in each caseits business (but excluding any Real Property);
(i) Dispositions of inventory, equipment or accounts receivable in the ordinary course of business and (ii) Dispositions of accounts receivable in connection with a factoring facility in an aggregate outstanding principal amount not to exceed $25,000,000 at any time entered into by a non-Loan Party Restricted Subsidiary undertaken consistent with past practice or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) the disposition of all or substantially all Dispositions of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentset forth on Schedule 7.05;
(d) any disposition Dispositions of assets cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property otherwise in the ordinary course of business;
(he) any issuance or sale Dispositions of Equity Interests in, or Indebtedness or other securities of, an Unrestricted SubsidiaryReceivables Assets pursuant to Permitted Securitization Programs;
(if) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(lA) the licensing or sub-licensing sale of intellectual property or other general intangibles defaulted receivables in the ordinary course of business and not as part of a Permitted Securitization Program and (other than exclusive, world-wide licenses that are longer than three (3B) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsproceeding;
(rg) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in licensing, sublicensing and the cross-licensing arrangements involving any technology or other intellectual property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted SubsidiarySubsidiary 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;
(h) 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 the Borrower or a Restricted Subsidiary as the case may belessor, receives 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 that have been subject to a casualty event or act of god;
(k) if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration at the time of 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 by the Borrower) of the assets sold or otherwise disposed of; and (2iii) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or for such Restricted Subsidiary, as the case may be, is Dispositions undertaken pursuant to this Section 7.05(k) shall be paid in the form of cash or Cash Equivalents; provided, that provided that, for purposes of this provision, each of the amount offollowing shall be deemed to be cash:
(iA) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheetsecurities, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheetnotes, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities assets received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash EquivalentsEquivalents within 180 days of the receipt thereof, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), received in each case, within one hundred that conversion;
(B) any liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and eighty (180) days following as a result of which the receipt thereof, Borrower or such Restricted Subsidiary is released from further liability; and
(iiiC) any Designated Non-Cash Consideration received by the Borrower or such any of its Restricted Subsidiary Subsidiaries in such Disposition having an Disposition; provided that the quantity equal to (1) the aggregate fair market valuevalue 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 (iiiC) that is at that time outstanding minus (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a2) the amount of the Net Proceeds previously realized in cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of from prior Designated Non-Cash Consideration being determined shall not exceed $25,000,000;
(l) any Investment permitted pursuant to Section 7.02(m), which constitutes a Disposition;
(m) Dispositions that do not constitute Asset Sales;
(n) 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 good faith a Similar Business;
(o) (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of 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;
(p) the unwinding or termination of any Hedging Obligations or Cash Management Obligations;
(q) the sale of assets by the Borrower and measured at its Restricted Subsidiaries consisting of Real Property solely to the time received extent that such Real Property is not necessary for the normal conduct of operations of the Borrower and without giving effect its Restricted Subsidiaries; and
(r) Dispositions between a Loan Party and a non-Loan Party Restricted Subsidiary to subsequent changes in value, shall, in each case, the extent such Disposition would be deemed to be cash for purposes of this provision and for no other purposepermitted by Section 7.02(k).
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Dispose of (in one transaction or a series of transactions) any property or Dispose of its Restricted Subsidiaries to, consummate any DispositionCapital Stock of any Subsidiary, except:
(a) any disposition a. Dispositions of cash, Cash Equivalents or Investment Grade Securities or damagedproperty to a wholly-owned Subsidiary;
b. Dispositions of surplus, obsolete or worn out equipment or other assetsproperty, or assets property that is no longer used useful, useable or useful economically viable in the business conduct of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer business;
c. Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition d. Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 property (other than clause (gCollateral) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate having a fair market value (as determined in good faith by the Borrower) not to exceed $5 million25,000,000 (or the equivalent in any other currency) in the aggregate during the term of this Agreement;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) e. Dispositions to the extent qualifying that (i) the relevant property subject to such Disposition is exchanged for, or for non-recognition under Section 1031 credit against the purchase price of, similar replacement property or (ii) the proceeds of the Coderelevant Disposition are promptly applied to the purchase price of such replacement property;
f. Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Businesssimilar proceeding);
g. [Reserved];
h. Dispositions required to comply with any requirement of a Governmental Authority or a Requirement of Law;
i. Dispositions of cash and/or cash equivalents (gincluding Permitted Cash Equivalents) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or j. Dispositions of assets required by Law, governmental regulation for the purpose of charitable contributions or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures similar gifts 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, such assets are not material to the conduct of the business ability of the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, to conduct its business;
(o) an issuance of Equity Interests k. Dispositions permitted pursuant to benefit plans, employment agreements, equity plans, stock subscription Section 7.4 or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faithSection 7.6;
(p) any surrender or waiver l. Dispositions of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables accounts receivable in connection with the compromise, settlement collection or collection compromise thereof in the ordinary course of business or business, in bankruptcy or similar proceedings and exclusive of factoring or similar arrangementsan aggregate amount not to exceed $50,000,000 in any fiscal year;
m. any other Disposition of any property in the ordinary course of business; provided that (ri) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of for such Disposition shall be at least equal to the fair market value of such property at the time of such Disposition, (as determined in good faith by the Borrowerii) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the such consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is shall be in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and/or cash equivalents and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause amount (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with based upon the fair market value of each item such property) of Designated Non-Cash Consideration being determined in good faith by all property sold or otherwise disposed pursuant to all such Dispositions on and after the Borrower and measured Effective Date at the time received of and without after giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeany such Disposition does not exceed $10,000,000.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any Disposition of any of its Restricted Subsidiaries to, consummate any Disposition, property except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedused, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Companies
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition Dispositions of assets property by a Restricted Company to another Restricted Company; provided that if the transferor of such property is a FNIS Loan Party (x) the transferee thereof must either be a FNIS Loan Party or issuance or sale of Equity Interests of any a Restricted Subsidiary that is a Domestic Subsidiary or (y) to the extent such transaction constitutes an Investment in any a Foreign Subsidiary that is a Restricted Subsidiary, such transaction or series of transactions with an aggregate fair market value (as determined in good faith is permitted by the Borrower) not to exceed $5 millionSection 2(c);
(e) any disposition of property or assets or issuance of securities Dispositions permitted by a Restricted Subsidiary to the Borrower or Sections 2 and 6 and Liens permitted by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan PartySection 1;
(f) Dispositions by any Restricted Company of property pursuant to sale-leaseback transactions; provided that (i) the extent qualifying fair market value of all property so Disposed of shall not exceed $100,000,000 from and after the Amendment No. 1 Effective Date and (ii) the purchase price for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like such property (excluding any boot thereon) shall be paid to such Restricted Company for use in a Similar Businessnot less than 75% cash consideration;
(g) (i) Dispositions of cash and Cash Equivalents and (ii) Dispositions pursuant to and in accordance with Cash Management Practices and in connection with the leaseVault Cash Operations;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(i) leases, assignment subleases, licenses or sub-lease sublicenses of any real or personal property in the ordinary course of business;
(h) any issuance or sale business and which do not materially interfere with the business of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authoritythe Restricted Companies;
(j) sales transfers of accounts receivable, or participations therein, in connection with any Receivables Facility permitted property subject to be incurred pursuant to Section 7.02(b)(19)Casualty Events upon receipt of the proceeds of such Casualty Event;
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Dispositions in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions consisting 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the BorrowerFNIS, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholeCompanies;
(ol) an issuance Dispositions of Equity Interests Investments in Joint Ventures to the extent required by, or made pursuant to benefit plansbuy/sell arrangements between the joint venture parties set forth in, employment agreementsjoint venture arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Amendment No. 1 Effective Date or (ii) to the extent that the net cash proceeds of such Disposition are either reinvested or applied to prepay loans pursuant to the terms of the FNIS Credit Agreement or the Metavante Credit Agreement;
(m) Dispositions of property to an Unrestricted Subsidiary; provided that to the extent constituting an Investment, equity plans, stock subscription or shareholder agreements, stock ownership plans such Investment must be an Investment permitted by Section 2(n);
(n) Dispositions of real property and other similar plans, policies, contracts or arrangements established related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or approved by consultants of the Borrower in good faithRestricted Companies;
(po) any surrender or waiver Dispositions of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof tangible property in the ordinary course of business or in bankruptcy or similar proceedings and exclusive as part of factoring or similar arrangementsa like-kind exchange under Section 1031 of the Code;
(p) voluntary terminations of Swap Contracts;
(q) Dispositions of Unrestricted Subsidiaries;
(r) the granting Dispositions of Liens not prohibited by this Agreement;Securitization Assets (or a fractional undivided interest therein) in a Securitization Financing permitted under Section 3(v); and
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes not otherwise permitted under this Section 5 by a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect Company to each such Disposition, as Persons that are not Affiliates of the time of Transaction Parties; provided that (i) such Disposition) of all such Dispositions does not exceed $5 million; and
Disposition is made in good faith on an arms’ length basis and (t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1ii) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time net cash proceeds of such Disposition at least equal are either reinvested or applied to prepay loans pursuant to the fair market value (as determined in good faith by the Borrower) terms of the assets sold FNIS Credit Agreement or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeMetavante Credit Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity National Information Services, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedabandoned, obsolete or worn out equipment or other assets, or assets no longer used useful property, whether now owned or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerhereafter acquired, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the inventory and immaterial assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of property used or useful in the business of the Borrower and its Subsidiaries (other than inventory and financial assets) or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of property used or useful in the business of the Borrower and its Subsidiaries (other than inventory and financial assets);
(d) Dispositions of property subject to casualty or condemnation giving rise to the receipt of insurance proceeds or condemnation awards to replace or repair such property;
(e) the Borrower and each of its Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business;
(f) Dispositions permitted by Section 7.04;
(g) Dispositions permitted by Section 7.12;
(h) any issuance the sale or sale discount without recourse of Equity Interests in, accounts receivable arising in the ordinary course of business in connection with the compromise or Indebtedness or other securities of, an Unrestricted Subsidiarycollection thereof;
(i) foreclosures on assets the abandonment, cancellation, non-renewal, or Dispositions discontinuance of assets required by Law, governmental regulation use or any Governmental Authoritymaintenance of IP Rights if the Borrower determines in good faith that such Disposition is desirable in the conduct of its business and not materially disadvantageous to the interests of the Lenders;
(j) sales non-exclusive licenses of accounts receivable, or participations thereinIP Rights (i) in the ordinary course of business and (ii) otherwise, in connection each case which do not materially interfere with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)the business of the Borrowers and their Subsidiaries, taken as a whole;
(k) transactions otherwise permitted under Section 7.06;
(l) Dispositions of property by any financing transaction Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor is a wholly-owned Subsidiary the transferee must be the Borrower or a wholly-owned Subsidiary (excluding including Dispositions permitted by way of Section 7.04);
(m) So long as no Default exists or would result therefrom, to the extent constituting a Sale and Lease-Back Transaction) with respect to property built or acquired Disposition, the issuance by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;its Equity Interests; and
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of Dispositions by the Borrower and its Restricted Subsidiaries taken as a whole;
not otherwise permitted under this Section 7.05; provided that (oi) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all such Dispositions does property Disposed of in reliance on this clause (n) during the term of this Agreement shall not exceed $5 million50,000,000; provided, however, that any Disposition pursuant to this Section 7.05 (except for Dispositions pursuant to clauses (d), (f), (h), (k), (l) and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) , solely with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time Subsidiaries of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower, (m) of the assets sold or otherwise disposed of; and (2this Section 7.05) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and shall be for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Samples: Credit Agreement (Harte Hanks Inc)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition Dispositions of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property inventory in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property in arms-length transactions in the ordinary course of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiarybusiness;
(id) foreclosures on assets or Dispositions of assets required by Law, governmental regulation property to the Borrower or any Governmental Authorityto a Guarantor;
(je) sales of accounts receivable, or participations therein, in connection with any Receivables Facility Dispositions expressly permitted to be incurred pursuant to by Section 7.02(b)(19)7.04;
(kf) any financing transaction (excluding by way non-exclusive licenses of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles IP Rights in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years)in connection with Franchise Agreements and substantially consistent with past practice;
(mg) salesother Dispositions of assets in arms-length transactions so long as (i) at the time of such Disposition, transfers no Default or Event of Default shall exist or be continuing or shall result from such Disposition, (ii) the consideration received in connection therewith consists of not less than 75% of cash and other dispositions Cash Equivalents, and (iii) the aggregate proceeds from assets Disposed of Investments pursuant to this clause (g) and clause (j) do not exceed (i) $10,000,000 during any Fiscal Year and (ii) $20,000,000 in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between aggregate during the joint venture parties set forth in joint venture arrangements and similar binding arrangementsterm of this Agreement;
(nh) the lapse sale or abandonment issuance of intellectual (i) any Subsidiary’s Equity Interests to the Borrower or any Guarantor or (ii) any Minority Interest;
(i) the leasing or sub-leasing of real property rights or entering into occupancy agreements with respect thereto, in each case, that would not materially interfere with the required use of such real property by the Borrower or its Subsidiaries and is in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower at arm’s length and its Restricted Subsidiaries taken as a wholeon market terms;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(sj) Dispositions of Investments in and the property of joint ventures (restaurants or other assets acquired pursuant to the extent any such joint venture constitutes Permitted Acquisitions that have not been rebranded as a Restricted Subsidiary) “Noodles & Company” restaurant or other similar restaurant concept so long as the aggregate fair market value (determined, with respect to each such Disposition, as proceeds from assets Disposed of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iiij) that is at that time outstanding and clause (but less g) do not exceed (i) $10,000,000 during any Fiscal Year and (ii) $20,000,000 in the amount aggregate during the term of this Agreement; and
(k) any transfer of assets of any cash Loan Party to any Person other than a Loan Party in exchange for assets of such Person as part or Cash Equivalents received all of the purchase price in connection with a subsequent sale or conversion of or collection Permitted Acquisition; provided, that (i) such exchange is consummated on such Designated Non-Cash Considerationan arm’s length basis for fair consideration, up to the lesser of and (aii) the amount of the cash and Cash Equivalents so received (less the cost of dispositionprovisions relating to a Permitted Acquisition shall otherwise have been complied with, if anyincluding with respect to Section 6.12 hereof. provided, however, that any Disposition pursuant to Section 7.05(a) and (bthrough Section 7.05(k) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the shall be for fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Samples: Credit Agreement (NOODLES & Co)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
(a) any disposition Permitted Transfers;
(b) Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assetshereafter acquired, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are reasonably promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition Dispositions permitted by Section 7.04 (other than solely in reliance on clause (f) thereof) and, to the extent constituting a Disposition, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06 and (iii) Equity Issuances and other equity issuances, in each case, of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) Holdings not to exceed $5 millionexpressly prohibited herein;
(e) any disposition non-exclusive licenses of trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses and other intellectual property or assets or issuance rights in the ordinary course of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party shall be to another Loan Partybusiness and substantially consistent with past practice;
(f) the lapse of registered patents, trademarks and other Intellectual Property to the extent qualifying for non-recognition under Section 1031 not material in the conduct of its business and so long as such lapse is not materially adverse to the interests of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar BusinessAdministrative Agent and the Lenders;
(g) the leasediscount, assignment write-off or sub-lease Disposition of accounts receivable overdue by more than one hundred twenty (120) days or the sale of any real or personal property such accounts receivable for the purpose of collection to any collection agency, in each case in the ordinary course of business;
(h) the unwinding of any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted SubsidiarySwap Contract so long as the Swap Termination Value associated therewith does not exceed $5,000,000;
(i) foreclosures on other Dispositions so long as (i) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (ii) [reserved], (iii) such transaction does not involve the sale or other disposition of a minority or preferred Equity Interests in any Subsidiary, (iv) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this Section 7.05, and (v) the aggregate net book value of all of the assets sold or Dispositions otherwise disposed of assets required by Law, governmental regulation or the Loan Parties and their Subsidiaries in all such transactions in any Governmental Authority;fiscal year of Holdings shall not exceed $10,000,000; and
(j) sales sales, transfers or other dispositions of accounts receivable, or participations therein, receivable in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles receivables factoring arrangements in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) yearspermitted to be assumed pursuant to Section 7.02(m);
(m) sales; provided, transfers and other dispositions of Investments that, in joint ventures to no event shall the extent required byBorrower or any Subsidiary Dispose of, or made pursuant toexclusively license, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
to a Person that is not a Loan Party (nincluding any transfer from a Loan Party to a non-Loan Party) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination Material IP Rights of the Borrower, Borrower and its Subsidiaries that are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value whole (as reasonably determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Digital Turbine, Inc.)
Dispositions. The Borrower shall notConvey, and shall not sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Restricted Subsidiaries toto Transfer, consummate all or any Dispositionpart of its business or property, except:
except for Transfers (a) any disposition of cashInventory in the ordinary course of business; (b) of worn-out, Cash Equivalents surplus or Investment Grade Securities or damagedobsolete Equipment that is, obsolete or worn out equipment or other assetsin the reasonable judgment of Borrower, or assets no longer economically practicable to maintain or used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business of Borrower; (c) consisting of Permitted Liens and Permitted Investments and other transactions expressly permitted by Sections 7.3 and/or 7.7; (d) consisting of the sale or issuance of any disposition stock of Borrower not prohibited under Section 7.2 of this Agreement; (e) consisting of Borrower’s use or transfer of inventory money or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary Cash Equivalents in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith not otherwise prohibited by the Borrower) not to exceed $5 million;
(e) any disposition terms of property this Agreement or assets or issuance of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiaryother Loan Documents; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for of non-recognition under Section 1031 exclusive licenses for the use of the Code, or any comparable or successor provision, any exchange property of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (and licenses that could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than exclusive, world-wide licenses territory and that are longer than three (3) years);
(m) sales, transfers and other dispositions of Investments in joint ventures may be exclusive as 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 lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination territory only as to discreet geographical areas outside of the Borrower, are not material to the conduct United States; (g) consisting of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription discounting or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
; (rh) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (Borrower to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the other Borrower or by any Restricted Subsidiary, as the case may be, receives consideration at the time Subsidiary of such Disposition at least equal Borrower to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form another Subsidiary of cash or Cash EquivalentsBorrower; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet settlement, release or surrender of contractual rights or litigation claims in the footnotes thereto or if incurred or accrued subsequent to the date ordinary course of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or business not in excess of Five Million Dollars ($5,000,000) in the footnotes thereto if such incurrence aggregate in any fiscal year of Borrower; (j) the sale, transfer, abandonment or accrual had taken place on other disposition of improvements, additions or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee alterations in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount lease of any cash or Cash Equivalents received real property not in connection with a subsequent sale or conversion excess of or collection on such Designated Non-Cash Consideration, up to Five Million Dollars ($5,000,000) in the lesser aggregate in any fiscal year of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) Borrower; and (bk) of assets having a book value not in excess of One Million Dollars ($1,000,000) in the initial amount aggregate in any fiscal year of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeBorrower.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
: (a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedunneeded, obsolete unproductive or worn out property, whether now owned or hereafter acquired, in the Ordinary Course of Business to Persons; (b) Dispositions of inventory and leases of property, in each case in the Ordinary Course of Business; (c) Dispositions of equipment or other assetsreal property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property for use in the Ordinary Course of Business, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property for use in the Ordinary Course of Business or assets no longer used (iii) the board of directors or useful senior management of the Company 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 and Company or such Subsidiary; (d) Dispositions of property by any Subsidiary to the Restricted Subsidiaries Company or to a wholly-owned Subsidiary of the Company; (e) Dispositions comprising transactions expressly permitted by Section 7.04(a) through (c); (f) non-exclusive licenses or sublicenses of IP Rights in the reasonable opinion Ordinary Course of Business and substantially consistent with past practice for terms not exceeding five years and leases and subleases granted to others that do not materially interfere with the Ordinary Course of Business of the Borrower, in each case, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause Company and its Subsidiaries; (g) thereof);
the sale, without recourse and in the Ordinary Course of Business, of accounts receivable due from Federal, state or other Governmental Authority arising in the Ordinary Course of Business (cand not as part of any bulk sale or financing of receivables) in an amount not to exceed $25,000,000 in any fiscal year or $50,000,000 in the aggregate after the date of this Agreement; (h) Dispositions of non-core assets acquired in a permitted Acquisition by the Company or any of its Subsidiaries within 12 months of such Acquisition; (i) Dispositions of property constituting (i) the making of any Restricted Payment that is Investments permitted to be made, and is made, under Section 7.05 or any Permitted Investment;
7.02, (dii) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition Indebtedness permitted under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property 7.03 and/or (excluding any boot thereon) for use in a Similar Business;
(giii) the lease, assignment or sub-lease making of any real or personal property in Restricted Payments permitted by Section 7.07; (j) the ordinary course Disposition of business;
(h) any issuance or sale of Equity Interests equity interests in, or Indebtedness or other securities assets of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation any GLC Venture or any Governmental AuthorityProject Debt Entity;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose.
Appears in 1 contract
Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate Make any Disposition, except:
(a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment or other assetsproperty, or assets property no longer used or useful usable in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrowerbusiness, in each casewhether now owned or hereafter acquired, in the ordinary course of business or any disposition or transfer of inventory or goods (or other assets) held for sale in the ordinary course of business;
(b) Dispositions of inventory in the disposition ordinary course of all or substantially all business and terminations of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, leases and is made, under Section 7.05 or any Permitted Investment;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property licenses in the ordinary course of business;
(hc) any issuance Dispositions of equipment or sale real property to the extent that (i) such property is exchanged for credit against the purchase price of Equity Interests in, similar or Indebtedness related replacement property used or other securities of, an Unrestricted Subsidiaryusable in the business or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar or related replacement property used or usable in the business;
(id) foreclosures on assets or Dispositions of assets required property by Lawany Subsidiary of Holdings to any Subsidiary of Holdings; provided that if the transferor of such property is a Loan Party, governmental regulation or any Governmental Authoritythe transferee thereof must either be a Loan Party;
(je) sales Dispositions or discounts without recourse of accounts receivable, or participations therein, receivable in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19)the compromise or collection thereof;
(kf) any financing transaction (excluding by way Dispositions of a Sale investment securities and Lease-Back Transaction) with respect to property built or acquired by Cash Equivalents in the Borrower or any ordinary course of its Restricted Subsidiaries after the Closing Datebusiness;
(lg) the licensing Dispositions permitted by Section 7.04;
(h) Leases, subleases, licenses or sub-licensing sublicenses (including of intellectual property or other general intangibles IP Rights) and terminations thereof, in each case in the ordinary course of business that do not materially interfere with the business of Holdings and its Subsidiaries (other than exclusive, world-wide licenses that are longer than three (3) yearstaken as a whole);
(mi) salesWith the consent of Required Lenders, transfers abandonment or other Disposition of IP Rights that are no longer material to the conduct of the businesses of Holdings and its Subsidiaries (taken as a whole);
(j) Dispositions of non-core assets acquired in connection with Permitted Acquisitions or other dispositions Investments; provided that (i) the aggregate amount of such sales shall not exceed 50% of the fair market value of the acquired entity or business and (ii) each such sale is in an arm’s-length transaction (or no less favorable to such Subsidiary than an arm’s-length transaction) and such Subsidiary receives at least fair market value;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and or similar binding arrangements;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of the time of such Disposition) of all such Dispositions does not exceed $5 million; and
(tl) Dispositions (including by way The unwinding of any Sale and Lease-Back Transaction) with respect to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeSwap Contract.
Appears in 1 contract
Samples: Debtor in Possession Term Loan Agreement (EveryWare Global, Inc.)
Dispositions. The Borrower shall not, and shall not permit Make any of its Restricted Subsidiaries to, consummate Disposition or enter into any agreement to make any Disposition, except:
: (a) any disposition Dispositions of cash, Cash Equivalents or Investment Grade Securities or damaged, obsolete or worn out equipment property, whether now owned or other assets, or assets no longer used or useful in the business of the Borrower and the Restricted Subsidiaries in the reasonable opinion of the Borrower, in each casehereafter acquired, in the ordinary course of business or any disposition or transfer business; (b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
; (bc) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (d) Dispositions of property (i) by the Company or any Subsidiary to the Company or to any wholly-owned direct or indirect Subsidiary; provided that (A) if the transferor of such property is a Domestic Loan Party, the transferee thereof must be another Domestic Loan Party, or, if the property transferred is Equity Interests in one of CST Electronics Co., Ltd., Technitrol Singapore Holdings Pte. Ltd. or Pulse Electronics (Singapore) Pte. Ltd., the transferee thereof may be another one of such CST Electronics, Inc., Technitrol Singapore Holdings Ptd. Ltd. or Pulse Electronics (Singapore) Ptd. Ltd., (B) if the transferor of such property is a Foreign Obligor or a Subsidiary of a Foreign Obligor, the transferee thereof must be a Domestic Loan Party or a wholly-owned direct or indirect Subsidiary of such Foreign Obligor, and (C) no sales, leases, assignments or other transfers of plant, property and equipment with an aggregate book value in excess of $25,000,000 in the aggregate after the Closing Date shall be permitted by Domestic Subsidiaries to Foreign Subsidiaries or (ii) by the Company or any Subsidiary to the Company or to a wholly-owned direct or indirect Subsidiary, provided that the aggregate value of property so transferred shall not exceed $5,000,000 in any fiscal year; (e) Dispositions by the Company or any of its Subsidiaries of property pursuant to sale-leaseback transactions, provided that the higher of book value or fair value of all property so Disposed of by all such Persons shall not exceed $10,000,000 after the Closing Date; (f) leases and licenses in the ordinary course of business consistent with past practices; provided such leases and licenses are not for all or substantially all of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause Company's or such Subsidiary's property; and (g) thereof);
(c) Dispositions by the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 Company or any Permitted Investment;
(d) any disposition Subsidiary of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed $5 million;
(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; provided, that any transfer from a Loan Party shall be to another Loan Party;
(f) to the extent qualifying for non-recognition under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) the lease, assignment or sub-lease of any real or personal property which does not constitute a material part of its assets in the ordinary course of business;
(h) any issuance or sale of Equity Interests inarm's length transactions for fair market value, or Indebtedness or other securities of, an Unrestricted Subsidiary;
provided that (i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authority;
(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19);
(k) any financing transaction (excluding by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any of its Restricted Subsidiaries after the Closing Date;
(l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(o) an issuance of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans and other similar plans, policies, contracts or arrangements established in the ordinary course of business or approved by the Borrower in good faith;
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(r) the granting of Liens not prohibited by this Agreement;
(s) Dispositions of Investments in and the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each such Disposition, as of at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all such Dispositions does property Disposed of in reliance on this clause (g) in any fiscal year shall not exceed $5 million; and
(t) Dispositions (including by way of any Sale and Lease-Back Transaction) with respect 20,000,000 to which (1) the Borrower or any Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, Persons other than liabilities that are by their terms subordinated to the ObligationsCompany and its Subsidiaries, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary aggregate book value of all property Disposed of in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to reliance on this clause (iiig) that is at that time outstanding to all Persons (but less including without limitation the amount of Company and its Subsidiaries) in any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) fiscal year shall not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purpose30,000,000.
Appears in 1 contract
Samples: Credit Agreement (Technitrol Inc)
Dispositions. The Borrower shall not, and shall not permit Make any Disposition of any of its Restricted Subsidiaries to, consummate any Disposition, property except:
(a) any disposition Dispositions of cashobsolete, Cash Equivalents or Investment Grade Securities or damagedused, obsolete surplus or worn out equipment property, whether now owned or other assetshereafter acquired, or assets in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower Borrowers and the their Restricted Subsidiaries in the reasonable opinion of the Borrower, in each case, in the ordinary course of business or any disposition or transfer Subsidiaries;
(b) Dispositions of inventory or goods (or other assets) held for sale in the ordinary course of business;
(bc) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the disposition proceeds of all or substantially all such Disposition are promptly applied to the purchase price of the assets of any Restricted Subsidiary in a manner permitted pursuant to Section 7.03 (other than clause (g) thereof);
(c) the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investmentsuch replacement property;
(d) any disposition Dispositions of assets property by (i) a Solutions Restricted Company to another Solutions Restricted Company, (ii) a Tax Restricted Company to another Tax Restricted Company or issuance to a Solutions Restricted Company or sale (iii) a Solutions Restricted Company to a Tax Restricted Company (A) in the ordinary course of Equity Interests of any Restricted Subsidiary in any transaction business or series of transactions (B) with an aggregate a fair market value for all such Dispositions pursuant to this clause (as determined B) after the Closing Date not exceeding $75,000,000, in good faith by each case including any such Dispositions effected pursuant to a merger, liquidation or 101 dissolution; provided that if the Borrowertransferor of such property is a Guarantor or a Borrower (x) not the transferee thereof must either be a Borrower or a Guarantor or (y) to exceed $5 millionthe extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e) Dispositions permitted by Sections 7.02 and 7.04 (so long as any disposition of property or assets or issuance of securities by Disposition pursuant to a Restricted Subsidiary liquidation permitted pursuant to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary; provided, that any transfer from a Loan Party Section 7.04 shall be to another Loan Partydone on a pro rata basis among the equity holders of the applicable Subsidiary) and Section 7.06 and Liens permitted by Section 7.01;
(f) Dispositions by a Borrower or Restricted Subsidiary of property pursuant to sale-leaseback transactions; provided that (i) the extent qualifying fair market value of all property so Disposed of shall not exceed $50,000,000 from and after the Closing Date and (ii) the purchase price for non-recognition under Section 1031 of the Code, such property shall be paid to such Borrower or any comparable or successor provision, any exchange of like property (excluding any boot thereon) Restricted Subsidiary for use in a Similar Businessnot less than 75% cash consideration;
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the leasecollection or compromise thereof;
(i) leases, assignment subleases, licenses or sub-lease sublicenses of any real or personal property in the ordinary course of business;
(h) any issuance or sale business and which do not materially interfere with the business of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures on assets or Dispositions of assets required by Law, governmental regulation or any Governmental Authoritythe Restricted Companies;
(j) sales transfers of accounts receivable, or participations therein, in connection with any Receivables Facility permitted property subject to be incurred pursuant to Section 7.02(b)(19)Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) any financing transaction (excluding Dispositions of property by way of a Sale and Lease-Back Transaction) with respect to property built or acquired by the Borrower or any Restricted Subsidiary not otherwise permitted under this Section 7.05; provided that (i) at the time of its 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 the greater of (A) 2% of Total Consolidated Assets and (B) $75,000,000 and (iii) the purchase price for such property (if in excess of $15,000,000) shall be paid to such Borrower or Restricted Subsidiaries after the Closing DateSubsidiary for not less than 75% cash consideration;
(l) the licensing or sub-licensing of intellectual property or other general intangibles Dispositions in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three (3) years);
(m) sales, transfers and other dispositions consisting 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;
(n) the lapse or abandonment of intellectual property rights in the ordinary course of business IP Rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Restricted Companies;
(m) 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 (i) in substantially the form as such arrangements are in effect on the Closing Date or (ii) to the extent that the Net Cash Proceeds of such Disposition are applied to prepay the Term Loans pursuant to Section 2.05(b)(ii);
(n) Dispositions by any Restricted Subsidiary of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower and its or to another Restricted Subsidiaries taken as Subsidiary; provided that (i) if the transferor in such a wholetransaction is a Guarantor, then the transferee must 102 either be a Borrower or a Guarantor or (ii) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 7.02;
(o) an issuance Dispositions of Equity Interests pursuant to benefit plans, employment agreements, equity plans, stock subscription or shareholder agreements, stock ownership plans real property and other similar plans, policies, contracts or arrangements established related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or approved by consultants of the Borrower in good faithRestricted Companies;
(p) any surrender or waiver Dispositions of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) dispositions of receivables in connection with the compromise, settlement or collection thereof tangible property in the ordinary course of business as part of a like-kind exchange under Section 1031 of the Code;
(q) Dispositions of real property and related properties as part of the resolution or settlement of claims under any insurance or insurance related contract entered into by a Regulated Subsidiary in bankruptcy or similar proceedings and exclusive the ordinary course of factoring or similar arrangementsbusiness;
(r) the granting voluntary terminations of Liens not prohibited by this AgreementSwap Contracts;
(s) Dispositions set forth on Schedule 7.05;
(t) Dispositions of Investments Unrestricted Subsidiaries; and
(u) Dispositions of Securitization Assets (or a fractional undivided interest therein) in a Securitization Financing permitted under Section 7.03(y); provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(d), (e), (h), (l) and (n), shall be for no less than the property of joint ventures (to the extent any such joint venture constitutes a Restricted Subsidiary) so long as the aggregate fair market value (determined, with respect to each of such Disposition, as of property at the time of such Disposition) . To the extent any Collateral is Disposed of all such Dispositions does not exceed $5 million; and
(t) Dispositions (including as expressly permitted by way of this Section 7.05 to any Sale and Lease-Back Transaction) with respect to which (1) the Borrower Person other than Solutions or any of its Restricted SubsidiarySubsidiaries that is a Loan Party, as such Collateral shall be sold free and clear of the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (as determined in good faith Liens created by the Borrower) of Loan Documents, and the assets sold or otherwise disposed of; and (2) except Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided, that the amount of:
(i) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet or in the footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) and for which the Borrower and all such Restricted Subsidiaries have been validly released,
(ii) any notes or other obligations or securities received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or any such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within one hundred and eighty (180) days following the receipt thereof, and
(iii) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding (but less the amount of any cash or Cash Equivalents received in connection with a subsequent sale or conversion of or collection on such Designated Non-Cash Consideration, up to the lesser of (a) the amount of the cash and Cash Equivalents so received (less the cost of disposition, if any) and (b) the initial amount of such Designated Non-Cash Consideration) not to exceed $150 million, with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower and measured at the time received and without giving effect to subsequent changes in value, shall, in each case, be deemed to be cash for purposes of this provision and for no other purposeforegoing.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
