Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make any Disposition, except: (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h); (e) Dispositions permitted by Section 7.04; (f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business; (g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and (h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Carpenter Technology Corp), Credit Agreement (Carpenter Technology Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, excess or worn out propertyproperty or property no longer used in the business of the Borrower or its Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx to the Borrower or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to its Subsidiaries; provided that if the transferor of such property is a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to Loan Party, the transferee thereof must be a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions by the Borrower and its Subsidiaries of Cash Equivalents property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed (i) $25,000,000 from and Eligible Investments after the Closing Date or (ii) $5,000,000 in any fiscal year;
(g) leases, subleases, licenses or sublicenses of real or personal property in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection each case that do not materially interfere with the collection or compromise thereof; andbusiness of the Borrower and its Subsidiaries;
(h) in addition to additional Dispositions by the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx Borrower and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing and exist or would result from such Disposition, (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be the aggregate fair market value of all property Disposed of in pro forma compliance with the covenants set forth in Section 7.12 of reliance on this Agreement; provided, however, that any Disposition pursuant to clauses (a) through clause (h) of property having a book value in excess of shall not exceed $25,000,000 100,000,000 and (iii) the purchase price for such asset shall be for fair market value.paid to the Borrower or such Subsidiary at least 75% in cash;
(i) so long as no Event of Default shall occur and be continuing, the grant of any option or other right to purchase any asset in a transaction that would be permitted under the provisions of Section 7.05(h);
Appears in 2 contracts
Samples: Credit Agreement (MSCI Inc.), Credit Agreement (MSCI Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx Cxxxxxxxx or to a Wholly–-Owned Subsidiary of Xxxxxxxxx Cxxxxxxxx; provided that if the transferor of the property is a Loan Party, the transferee must be a Loan Party or (ii) to a joint venture or to a non venture, any non-Wholly-Owned Subsidiary of Xxxxxxxxx Cxxxxxxxx or any Subsidiary that is not a Loan Party, to the extent constituting cash for the fair market value of such property is received from such Disposition or such Disposition constitutes an Investment permitted by Section 7.03(h7.03(c);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable (x) in the ordinary course of business (exclusive of factoring or similar arrangements) or (y) in connection with the collection or compromise thereof, so long as the account debtor with respect thereto has instituted or consented to the institution of any proceeding under any Debtor Relief Law; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx Cxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx Cxxxxxxxx and its SubsidiariesSubsidiaries as of the Closing Date; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx Cxxxxxxxx and its SubsidiariesSubsidiaries as of the Closing Date, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such DispositionDisposition and the application of proceeds thereof, Xxxxxxxxx Cxxxxxxxx shall be in pro forma compliance as of the date of the Disposition with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Carpenter Technology Corp), Credit Agreement (Carpenter Technology Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) (x) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of business;
, (by) Dispositions of inventory property no longer used or useful in the conduct of the business of the Parent Borrower or any Restricted Subsidiary and (z) Dispositions to landlords of improvements made to leased real property pursuant to customary terms of leases entered into in the ordinary course of business;
(b) Dispositions of (i) inventory, goods held for sale in the ordinary course of business and (ii) immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned) in the ordinary course of business, including but not limited to Dispositions of medical devices or other medical products pursuant to a voluntary or mandatory recall thereof or of assets in connection with the consolidation of billing centers;
(c) Dispositions of 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 Xxxxxxxxx to the Parent Borrower or any Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx or Loan Party, (ii) to such Disposition is for cash and shall be for no less than the fair market value of such property at the time of such Disposition (or any promissory note or other non-cash consideration received in respect thereof must be a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment Restricted Payment permitted by Section 7.03(h7.06 (other than Section 7.06(b)(xviii))) or a Permitted Investment or (iii) if such transaction constitutes an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment;
(e) Dispositions that otherwise constitute a Permitted Investment, are permitted by Section 7.047.04 (other than Section 7.04(h)) or otherwise constitute a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) and Liens permitted by Section 7.01 (other than Section 7.01(l)(ii));
(f) Dispositions of property pursuant to sale-leaseback transactions; provided that to the extent the aggregate Net Proceeds from all such Dispositions since the Closing Date exceeds $40,000,000, such excess shall be reinvested in accordance with the definition of “Net Proceeds” or otherwise applied to prepay Loans in accordance with Section 2.05(b)(ii)
(g) Dispositions of cash and Cash Equivalents;
(h) (i) leases, subleases, licenses or sublicenses (including agreements under which the Parent Borrower or any Restricted Subsidiary has granted rights to end users to access and use the Parent Borrower’s or any Restricted Subsidiary’s products, technologies or services), in each case in the ordinary course of business and which do not materially interfere with the business of the Parent Borrower and the Restricted Subsidiaries, taken as a whole, and (ii) the abandonment of intellectual property rights (A) in the ordinary course of business or which in the reasonable good faith determination of the Administrative Borrower are not material to the conduct of the business of the Parent Borrower and the Restricted Subsidiaries taken as a whole or (B) that are no longer economically practicable or commercially reasonable to maintain;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Event of Default shall have occurred and be continuing or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $15,000,000, the Parent Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (free and Eligible Investments clear of all Liens at the time received (other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), clause (iii) of Section 7.01(k), Section 7.01(m), clauses (i) and (ii) of Section 7.01(r), Section 7.01(v), Section 7.01(bb), Section 7.01(cc), Section 7.01(dd), Section 7.01(gg), Section 7.01(ii), Section 7.01(jj) and Section 7.01(ll) and in each case, any permitted modifications, replacements, renewals or extensions of such Liens pursuant to Section 7.01(aa))); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrower’ most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i) are assumed by the transferee with respect to the applicable Disposition or (ii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Parent Borrower or any of its Restricted Subsidiaries) and, in the case of clause (i), for which each Parent Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Parent Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) in connection with the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Parent Borrower or any of its Restricted Subsidiaries), to the extent that the Parent Borrower and each of its Restricted Subsidiaries are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by the Parent Borrower or the applicable Restricted Subsidiary having an aggregate fair market value, taken together with all other non-cash consideration received pursuant to this clause (D) (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $90,000,000 and 35.0% of Trailing Four Quarter Consolidated EBITDA as determined at the time of such applicable Dispositions (net of any such non-cash consideration subsequently converted into cash and Cash Equivalents);
(k) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Parent Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 7.07;
(l) Dispositions or discounts, without recourse of accounts receivable or notes receivable in connection with the collection or compromise thereof in the ordinary course of business or the conversion of accounts receivable to notes receivable in the ordinary course of business;
(gm) Dispositions of ABL Priority Collateral not otherwise permitted by this Section 7.05 to the sale, assignment, transfer, Disposition, discount extent the net proceeds thereof are applied to repay or forgiveness cash collateralize the ABL Obligations;
(n) any swap of accounts receivable 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 Parent Borrower and the Subsidiaries as a whole, as determined in good faith by the Administrative 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 similar binding arrangements;
(q) the unwinding of any Swap Contract or any Cash Management Services permitted under Section 7.03(l);
(r) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(s) any Disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing;
(t) Dispositions by any Loan Party of any wholly-owned Restricted Subsidiary of the type described in clauses (d) and (e) of the definition of Excluded Subsidiary to the extent consisting of contributions or other Dispositions of Equity Interests in other wholly-owned Restricted Subsidiaries of the type described in clauses (d) and (e) of the definition of Excluded Subsidiary to such wholly-owned Restricted Subsidiary;
(u) Dispositions (i) of non-core assets acquired in connection with Permitted Acquisitions or any other acquisition or Investment permitted under this Agreement; provided that the aggregate amount of such sales shall not exceed 25% of the fair market value of the acquired entity or business, (ii) made to satisfy the Parent Borrower’s or any Restricted Subsidiary’s obligations under any non-compete agreement or (ii) made to obtain the approval of any anti-trust authority;
(v) Dispositions set forth on Schedule 7.05;
(w) any issuance of Equity Interests in any Restricted Subsidiary to any officer, director, consultant, advisor, service provider or employee of the Borrowers or any Restricted Subsidiary in respect of services provided to the Borrowers or a Restricted Subsidiary in the ordinary course of business approved by the Board of Directors of the Borrower;
(x) cancellation of Indebtedness owing to the Parent Borrower or any Restricted Subsidiary from members of management of the Parent Borrower, any of the Parent Borrower’s direct or indirect parent companies or any of the Parent Borrower’s Restricted Subsidiaries in connection with the collection repurchase or compromise thereofredemption of Equity Interests of any of the Parent Borrower’s direct or indirect parent companies;
(y) Dispositions of assets not constituting Collateral;
(z) any Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost-sharing agreements with any Borrower or any Subsidiary and settle any crossing payments in connection therewith or (ii) surrender, terminate or waive contractual rights and settle or waive contractual or litigation claims; and
(haa) Dispositions in addition an amount not to exceed the Dispositions permitted by clause (a) through clause (g) greater of this Section 7.05, Dispositions $25,000,000 and 10.0% of property of Xxxxxxxxx or Trailing Four Quarter Consolidated EBITDA in the aggregate in any Subsidiary, including Equity Interests of any Subsidiaryfiscal year; provided that such Dispositions consummated during the term any Disposition of any property pursuant to this Agreement in the aggregate do not exceed twenty-five percent Section 7.05 (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that except pursuant to the extent the property subject to any such Disposition represents more than five percent Sections 7.05(a), (5%) of the total assets of Xxxxxxxxx and its Subsidiariesd), (e), (h), (i), (l), (p), (q), (r), (s), (v), (w), (x), (z) no Default or Event of Default shall have occurred and be continuing and (iiaa) after giving effect and except for (x) Dispositions from the Parent Borrower or a Guarantor to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that Parent Borrower or a Guarantor or (y) Dispositions from any Disposition pursuant wholly-owned Non-Loan Party to clauses (aany other wholly-owned Non-Loan Party) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Parent Borrower or any of its Restricted Subsidiaries, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Administrative Borrower that such Disposition is not prohibited by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, aged or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 propertypermitted by Section 7.04;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx to the Company or to a wholly-owned Subsidiary; provided that (i) to Xxxxxxxxx if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or to a Wholly–Owned Subsidiary of Xxxxxxxxx or Guarantor, (ii) if such property was subject to a joint venture or Lien under any Collateral Document prior to such transfer it remains subject to an enforceable first priority (subject to Liens permitted under Section 7.01) perfected Lien under a non Wholly-Owned Subsidiary Security Document after such transfer, (iii) at the time of Xxxxxxxxx each such Disposition, the Opinion Loan Party Threshold would continue to be satisfied as if measured on the date of such Disposition and after giving effect thereto and (iv) with respect to any such Disposition of property with an aggregate book value in excess of an amount equal to $20,000,000, no later than five (5) Business Days prior to the extent constituting an Investment permitted by Section 7.03(h);proposed date of making such Disposition, the Company shall have delivered to the Administrative Agent satisfactory written evidence demonstrating such satisfaction of the Opinion Loan Party Threshold; and
(e) Dispositions by the Company or any Subsidiary not otherwise permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default shall exist or Event of Default shall have occurred and be continuing and would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (e) (after giving effect to such Disposition) after the Closing Date shall not exceed an amount equal to 5% of Consolidated Tangible Assets determined on the date of such Disposition, (iii) at the time of each such Disposition, Xxxxxxxxx each of the Loan Party Threshold and the Opinion Loan Party Threshold would continue to be satisfied as if measured on the date of such Disposition and after giving effect thereto and (iv) with respect to any such Disposition of property with an aggregate book value in excess of an amount equal to $20,000,000, no later than five (5) Business Days prior to the proposed date of making such Disposition, the Company shall be in pro forma compliance with have delivered to the covenants set forth in Section 7.12 Administrative Agent satisfactory written evidence demonstrating such satisfaction of this Agreementthe Loan Party Threshold and the Opinion Loan Party Threshold; provided, however, that any Disposition pursuant to clauses (a), (b) through or (he) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Fresh Del Monte Produce Inc), Credit Agreement (Fresh Del Monte Produce Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of inventory and goods held for sale in the ordinary course of business and Dispositions of immaterial assets (including failing to pursue or allowing any registrations or any applications for registration of any IP Rights to lapse or go abandoned in the ordinary course of business if, in the Borrower’s reasonable opinion, such discontinuance is desirable in the conduct of its 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 propertyproperty (which replacement property is actually promptly purchased);
(di) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (A) the transferee thereof must be a Loan Party or (B) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02; and (ii) Dispositions to Holdings, the Borrower or a Restricted Subsidiary constituting debt forgiveness;
(e) (i) Dispositions permitted by Sections 7.02, 7.04 and 7.06, Liens permitted by Section 7.01 and (ii) Dispositions of property by Xxxxxxxxx the Borrower or any a Restricted Subsidiary of Xxxxxxxxx (i) pursuant to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollysale-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04leaseback transactions;
(f) Dispositions of Cash Equivalents and Eligible Investments Equivalents;
(g) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business;
(gh) transfers of property subject to Casualty Events;
(i) Dispositions not otherwise permitted under this Section 7.05; provided that (A) the saleBorrower or Restricted Subsidiary, assignmentas the case may be, transferreceives consideration at the time of such Disposition at least equal to the fair market value (such fair market value to be determined in good faith by the Borrower at the time of contractually agreeing to such Disposition) and (B) with respect to any Disposition pursuant to this clause (i) for a purchase price in excess of $75,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents); provided, however, that for the purposes of this clause (i), the following shall be deemed to be cash:
(A) any liabilities (as shown on Holdings’, the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (x) are assumed by the transferee with respect to the applicable Disposition or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries) and, in each case, for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing,
(B) any securities, notes or other obligations received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition,
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or any Restricted Subsidiary), discount to the extent that the Borrower and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and
(D) (i) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess of 5.0% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, (ii) any Investment received by the Borrower or a Restricted Subsidiary that is treated as an Investment pursuant to Section 7.02(k), (o) or (p) or (iii) any Investment that the Borrower shall designate, solely for the purposes of this Section 7.05(i) as a Restricted Payment pursuant to Section 7.06(n), in each case with the fair market value of each item of Designated Non-Cash Consideration, Investment or Restricted Payment being measured at the time received and without giving effect to subsequent changes in value;
(j) Dispositions listed on Schedule 7.05(j) (“Scheduled Dispositions”);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions, discounts or forgiveness of accounts receivable in connection with the collection or compromise thereof;
(m) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of its Restricted Subsidiaries that is not in contravention of Section 7.07;
(o) the unwinding of any Swap Contract;
(p) any Disposition of Securitization Assets to a Securitization Subsidiary;
(q) 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;
(r) the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law; and
(s) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition conversion of accounts receivable to notes receivable. To the Dispositions extent any Collateral is Disposed of as expressly permitted by clause (a) through clause (g) of this Section 7.057.05 to any Person other than a Loan Party, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) Collateral shall be sold free and clear of the total assets of Xxxxxxxxx Liens created by the Loan Documents, and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx Administrative Agent shall be authorized to take any actions deemed appropriate in pro forma compliance with order to effect the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueforegoing.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)
Dispositions. Xxxxxxxxx will not, The Parent REIT and the Company will not cause or permit any of its Subsidiaries to, make any Disposition of any assets or enter into any agreement to make any Dispositionproperty, except:
(a) Dispositions in the ordinary course of obsolete business (other than those Dispositions permitted under clause (b) of this Section 10.7), so long as (i) no Default or Event of Default shall exist immediately before or immediately after such Disposition, and (ii) the Company Parties will be in compliance, on a Pro Forma Basis following such Disposition, with the covenants set forth in Section 10.6 of this Agreement as demonstrated by a compliance certificate with supporting calculations delivered to the Required Holders on or prior to the date of such Disposition showing the effect of such Disposition;
(b) Any of the following:
(i) Dispositions of obsolete, surplus or worn out propertyproperty or other property not necessary for operations, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and for no less than fair market value;
(b) Dispositions of inventory and in the ordinary course of business;
(cii) Dispositions of equipment or real property to the extent that (iA) such property is exchanged for credit against the purchase price of similar replacement property or (iiB) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property, in each case in the ordinary course of business and for no less than fair market value;
(diii) Dispositions of property by Xxxxxxxxx or any Subsidiary inventory and Investments of Xxxxxxxxx the type described in Sections 10.9(b) and (ic) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(giv) the sale, assignment, transfer, Disposition, discount or forgiveness leases of accounts receivable Real Property (other than any Unencumbered Borrowing Base Property) and personal property assets related thereto to any TRS; and
(v) in order to resolve disputes that occur in the ordinary course of business business, the Company and any Subsidiary of the Company may discount or in connection with otherwise compromise, for less than the collection face value thereof, notes or compromise thereof; accounts receivable;
(c) Dispositions of property by the Company or any Guarantor to the Company or to another Note Party;
(d) Dispositions pursuant to Section 10.2, and
(he) Any other Disposition approved in addition to writing by the Dispositions permitted by clause (a) through clause (g) Required Holders. Notwithstanding the foregoing provisions of this Section 7.0510.7, Dispositions neither the Company nor any Guarantor shall sell or make any other Disposition of assets or property that will have the effect of Xxxxxxxxx causing the Company or any Subsidiary, including Equity Interests Guarantor to become liable under any tax protection or tax sharing agreement if the amount of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not liability would exceed twenty-five an amount equal to one percent (251%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent Company or any Guarantor without the property subject to any such Disposition represents more than five percent (5%) prior written consent of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueRequired Holders.
Appears in 2 contracts
Samples: Note Purchase Agreement (Pebblebrook Hotel Trust), Note Purchase Agreement (Pebblebrook Hotel Trust)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Company and its Subsidiaries;
(b) Dispositions of inventory and in the ordinary course of businessassets that do not constitute Asset Sales;
(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 Xxxxxxxxx to Company or any Subsidiary to a Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Guarantor or a Borrower (i) to Xxxxxxxxx the transferee thereof must either be a Borrower or to a Wholly–Owned Subsidiary of Xxxxxxxxx Guarantor or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting such transaction constitutes an Investment Investment, such transaction is permitted by under Section 7.03(h)6.2;
(e) Dispositions permitted by Sections 6.4 and 6.6 and Liens permitted by Section 7.046.1;
(f) Dispositions of Cash Equivalents and Eligible Investments in property pursuant to sale-leaseback transactions; provided that the ordinary course fair market value of businessall property so Disposed of after the Closing Date (taken together with the aggregate book value of all property Disposed of pursuant to Section 6.5(k)) shall not exceed $125,000,000;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and;
(hi) leases, subleases, licenses or sublicenses, in addition each case in the ordinary course of business and which do not materially interfere with the business of Holdings, Company and its Subsidiaries;
(j) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) Dispositions after the Closing Date of property not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary6.5; provided that (i) at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent Disposition (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to other than any such Disposition represents more made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (k) (taken together with the aggregate fair market value of all property Disposed of pursuant to Section 6.5(f)) shall not exceed $125,000,000 and (iii) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $3,500,000, Company or a Subsidiary shall receive not less than five percent 75% of such consideration in the form of cash or Cash Equivalents (5%in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 6.1 and Liens permitted by Section 6.1(s) of the total assets of Xxxxxxxxx and its Subsidiaries, clauses (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in of Section 7.12 of this Agreement6.1(t)); provided, however, that for the purposes of this clause (iii), (A) any liabilities (as shown on Company’s or such Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Company or such Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Company and all of its Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Company or such Subsidiary from such transferee that are converted by Company or such Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received by Company or such Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to clauses this clause (aC) through (h) of property having a book value that is at that time outstanding, not in excess of $25,000,000 1.5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions listed on Schedule 6.5(l); and
(m) 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. provided that any Disposition of any property pursuant to this Section 6.5 (except pursuant to Sections 6.5(e) and except for Dispositions from a Credit Party to another Credit Party), shall be for no less than the fair market valuevalue of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.5 to any Person other than Holdings, Company or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Credit Documents, and Administrative Agent or Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Education Management LLC), Credit and Guaranty Agreement (Education Management LLC)
Dispositions. Xxxxxxxxx will notSubject to the Intercreditor Agreement, within 1 Business Day of the date of receipt by any Loan Party of the Net Cash Proceeds of any voluntary or involuntary sale or disposition by any Loan Party of assets (including casualty losses or condemnations, but excluding (y) sales or dispositions which qualify as Permitted Dispositions under clauses (b), (c), (d), (e), (i), (j), (k), (l), (m) or (n) of the definition of Permitted Dispositions, and will not cause (z) sales or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make any Disposition, except:
dispositions which qualify as Permitted Dispositions under clauses (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%p) of the total assets definition of Xxxxxxxxx and its Subsidiaries; provided further that Permitted Dispositions (except to the extent the property aggregate Net Cash Proceeds received from any sales or dispositions thereunder during any fiscal year exceed $500,000, in which case such excess Net Cash Proceeds shall be subject to any such Disposition represents more prepayment hereunder) other than five percent (5%) the Parkdale JV Interests Collateral), unless otherwise requested by the Required Lenders, Borrowers shall prepay the outstanding principal amount of the total assets Obligations in accordance with Section 2.3(f) in an amount equal to 100% of Xxxxxxxxx such Net Cash Proceeds (including condemnation awards and its Subsidiariespayments in lieu thereof) received by such Person in connection with such sales or dispositions and not used to permanently prepay loans under the First Loan Credit Agreement; provided, that, in the case of Excess Casualty/Condemnation Proceeds from any casualty loss or condemnation, so long as (iA) no Default or Event of Default shall have occurred and be is continuing or would result therefrom, (B) Borrowers shall have given Agent prior written notice of Borrowers’ intention to apply such Excess Casualty/Condemnation Proceeds to the costs of replacement or repair of the properties or assets that are the subject of such loss or condemnation, (C) the monies are held in a Deposit Account in which Agent has a perfected security interest, and (iiD) the applicable Loan Party completes such replacement or repair within 365 days after giving effect the initial receipt of such monies, then the Loan Party whose assets were the subject of such loss or condemnation shall have the option to each apply such DispositionExcess Casualty/Condemnation Proceeds to the costs of replacement or repair of the assets that are the subject of such loss or disposition unless and to the extent that such applicable period shall have expired without such replacement or repair being made or completed, Xxxxxxxxx in which case, any amounts remaining in the Deposit Account referred to in clause (C) above shall be applied in pro forma compliance accordance with the covenants set forth Section 2.3(f). Nothing contained in this Section 7.12 2.3(e)(iii) shall permit Parent or any of this Agreement; provided, however, that its Subsidiaries to sell or otherwise dispose of any Disposition pursuant to clauses (a) through (h) of property having a book value assets other than in excess of $25,000,000 shall be for fair market valueaccordance with Section 6.4.
Appears in 2 contracts
Samples: Credit Agreement (Unifi Inc), Credit Agreement (Unifi Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) (i) Dispositions of obsolete inventory in the ordinary course of business; (ii) Dispositions of property to the Borrower or any Subsidiary; provided, that if the transferor of such property is a Loan Party then the transferee thereof must be a Loan Party; (iii) Dispositions of accounts receivable in connection with the collection or compromise thereof; (iv) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries; and (v) the sale or disposition of Cash Equivalents for fair market value;
(b) Dispositions of property (including equipment) that is obsolete, worn out propertyor surplus personal property or property no longer useful for the ongoing operations of the Loan Parties and their Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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, or (ii) such property is exchanged for assets useful in the business of the Loan Parties and their Subsidiaries in the ordinary course of business; provided that, in each case, to the extent the property being transferred constitutes Collateral, such replacement property shall also constitute Collateral;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(e) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements with the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(f) Dispositions by any Loan Party to any Subsidiary that is not a Loan Party in an aggregate amount for all such Dispositions under this clause (f) not to exceed $2,000,000 during the term of Cash Equivalents and Eligible Investments in the ordinary course of businessthis Agreement;
(g) Dispositions of any Non-Core Assets acquired in connection with any Permitted Acquisition so long as the sale, assignment, transfer, Disposition, discount or forgiveness Net Cash Proceeds of accounts receivable any such Disposition are applied to prepay the Loans pursuant to Section 2.05(b);
(h) Dispositions of intellectual property rights in the ordinary course of business that are no longer used or useful in connection with the collection or compromise thereofbusiness of the Borrower and its Subsidiaries;
(i) the unwinding of any Swap Contract permitted hereunder;
(j) Disposition of the Xxxxxxx Property and/or Brickhaven Property after payment of the Riverbend/Xxxxxx Contract Termination Fee by Duke Energy; and
(hk) in addition Dispositions not otherwise permitted pursuant to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that (i) at the time of such Dispositions consummated Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the aggregate fair market value of all property disposed of in reliance on this clause (k) during the term of this Agreement in the aggregate do shall not exceed twenty-five percent the greater of (25%A) $10,000,000 and (B) 12% of Consolidated EBITDA of the total assets of Xxxxxxxxx Borrower and its Subsidiaries; provided further that to Subsidiaries on a consolidated basis for the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing most recently completed Measurement Period and (iiiii) after giving effect to each such Disposition, Xxxxxxxxx the Net Cash Proceeds received from any Disposition under this clause (k) shall be in pro forma compliance with applied to prepay the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition Loans pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueSection 2.05(b).
Appears in 2 contracts
Samples: Credit Agreement (Charah Solutions, Inc.), Credit Agreement (Charah Solutions, Inc.)
Dispositions. Xxxxxxxxx No Account Party will, nor will not, and will not cause or it permit any of its Significant Subsidiaries to, make sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily (any Disposition of the foregoing being referred to in this Section as a “Disposition” and any series of related Dispositions constituting but a single Disposition), any of its properties or enter into any agreement assets, tangible or intangible (including but not limited to make any Dispositionsale, assignment, discount or other disposition of accounts, contract rights, chattel paper or general intangibles with or without recourse), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness involving current assets or other invested assets classified on such Account Party’s or its respective Subsidiaries’ balance sheet as available for sale or as a trading account;
(b) Dispositions of inventory and sales, conveyances, assignments or other transfers or dispositions in immediate exchange for cash or tangible assets, provided that any such sales, conveyances or transfers shall not individually, or in the ordinary course aggregate for the Account Parties and their respective Subsidiaries (taken together with any other Dispositions previously made pursuant to this Section 7.02(b)), exceed 5% of businessConsolidated Total Assets at the time of the making of such Disposition;
(c) Dispositions of equipment or real other property to which is obsolete or no longer used or useful in the extent that (i) such property is exchanged for credit against conduct of the purchase price of similar replacement property or (ii) the proceeds business of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyAccount Party or its Subsidiaries;
(d) Dispositions of property by Xxxxxxxxx from an Account Party or a wholly-owned Subsidiary to any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx other Account Party or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);owned Subsidiary; or
(e) Dispositions permitted by Section 7.04;
(f) Dispositions the Disposition of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx all or any Subsidiary, portion of the life reinsurance operations (the “Life Operations”) conducted directly or indirectly by any Account Party (including Equity Interests through the Disposition of any Subsidiarya Subsidiary that conducts Life Operations); provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiariesthat, (i) no Default or Event of Default shall have occurred and be continuing and (ii) if, after giving effect to each such Disposition, Xxxxxxxxx such Account Party would no longer exist or have any operations, such Disposition shall only be permitted if the obligations hereunder of such Account Party with respect to any outstanding Letters of Credit issued for its account have been (i) assumed by another Account Party, (ii) terminated or expired or (iii) dealt with in pro forma compliance any other manner reasonably satisfactory to the Administrative Agent (after consultation with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueLenders).
Appears in 2 contracts
Samples: Unsecured Credit Agreement (Xl Group PLC), Secured Credit Agreement (Xl Group PLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings and the Restricted Subsidiaries;
(b) Dispositions of inventory and goods held for sale 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; provided that to the extent the property being transferred constitutes Term Loan First Lien Collateral, such replacement property shall constitute Term Loan First Lien Collateral;
(d) Dispositions of property by Xxxxxxxxx to Holdings or any Subsidiary a Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (ii) such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.02 (other than pursuant to a joint venture or to a non Wholly-Owned Subsidiary clause (4) of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(hdefinition of Permitted Investments);
(e) Dispositions permitted by Sections 7.02 (other than pursuant to clause (4) of the definition of Permitted Investments), 7.04 and 7.06 and Liens permitted by Section 7.047.01;
(f) Dispositions of property pursuant to sale leaseback transactions; provided that to the extent the aggregate amount of Net Cash Equivalents Proceeds received by Holdings or a Restricted Subsidiary from Dispositions made pursuant to this Section 7.05(f) exceeds $60,000,000, all Net Cash Proceeds in excess of such amount shall be applied to prepay Loans in accordance with Section 2.03(b)(ii)(A) and Eligible Investments may not be reinvested in the ordinary course business of businessthe Borrower or a Restricted Subsidiary;
(g) Dispositions of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including the saleprovision of software under an open source license), assignment, transfer, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition; (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $10,000,000, Holdings or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities constituting Subordinated Indebtedness, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of $15,000,000 and 1.25% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; and (iii) to the extent the aggregate amount of Net Cash Proceeds received by Holdings or a Restricted Subsidiary from Dispositions made pursuant to this Section 7.05(j) exceeds $150,000,000, all Net Cash Proceeds in excess of such amount shall be applied to prepay Loans in accordance with Section 2.03(b)(ii)(A) and may not be reinvested in the business of the Borrower or a Restricted Subsidiary;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection or compromise thereof; and;
(hm) in addition any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the Dispositions extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by clause (asuch provision) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx for use in any business conducted by the Borrower or any Subsidiary, including Equity Interests of any Subsidiaryits Restricted Subsidiaries that is not in contravention of Section 7.07; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject being transferred constitutes Term Loan First Lien Collateral, such replacement property shall constitute Term Loan First Lien Collateral;
(o) the unwinding of any Hedging Obligations;
(p) any Disposition of Securitization Assets to a Securitization Subsidiary;
(q) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(r) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business, other than the licensing of intellectual property on a long-term basis;
(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 represents more than five percent (5%) of is permitted by this Agreement, the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx Administrative Agent shall be authorized to take any actions deemed appropriate in pro forma compliance with order to effect the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Nexeo Solutions Holdings, LLC), Credit Agreement (Nexeo Solutions Finance Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property equipment is exchanged for credit against the purchase price of similar replacement property equipment or (ii) (A) the proceeds of such Disposition are reasonably promptly applied to the purchase price paid not less than 75% in cash, (B) within 180 days of such Disposition, the Parent or the applicable Restricted Subsidiary has obtained a written replacement propertyorder to replace such equipment with replacement equipment and (C) if the equipment subject to such Disposition was Collateral, such replacement equipment is or becomes Collateral subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties substantially contemporaneously with the consummation of such replacement;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Parent or to a Wholly–Owned Subsidiary wholly-owned Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx Loan Party or, prior to the extent constituting C&J Joinder Date, C&J or any of its Subsidiaries, the transferee thereof must be a Loan Party; provided further that no Disposition of the Equity Interests in any Restricted Subsidiary that does not constitute an Investment Excluded Subsidiary on the Closing Date shall be permitted by Section 7.03(h)under this clause (d) if the result of such transaction is to cause such Restricted Subsidiary to become an Excluded Subsidiary if such Person was not an Excluded Subsidiary or an Immaterial Subsidiary immediately prior to giving effect thereto;
(e) Dispositions permitted by Section 7.04;
(f) sales or non-exclusive grants of licenses or sublicenses to use the patents, trade secrets, know-how and other intellectual property, and licenses, leases or subleases of other assets, of the Parent or any wholly-owned Restricted Subsidiary to the extent not materially interfering with the business of the Parent or any Restricted Subsidiary;
(g) Dispositions by the Parent and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that the aggregate book value of all property Disposed of in reliance on this clause (g) in any fiscal year shall not exceed as of the date of any such Disposition an amount equal to 5.0% of Consolidated Tangible Assets of the Parent and its Restricted Subsidiaries as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or 6.01(b);
(h) so long as no Default shall occur and be continuing, the grant of any option or other right to purchase any asset in a transaction that would be permitted under the provisions of Section 7.05(g);
(i) Dispositions of Cash Equivalents non-core assets acquired in a Permitted Acquisition by the Parent or any of its Restricted Subsidiaries within 18 months of such Permitted Acquisition; provided that the aggregate book value of such non-core assets does not exceed 15.0% of the Consolidated Tangible Assets acquired pursuant to such Permitted Acquisition;
(j) Dispositions of light vehicles (i.e. cars and Eligible Investments pick-up trucks but not heavy trucks or rigs) in the ordinary course of business;
(gk) any settlement of or payment in respect of, or series of settlements or payments in respect of, any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Parent or any of its Restricted Subsidiaries;
(l) Dispositions of property constituting the making of Investments permitted under Section 7.03 other than Section 7.03(n) and Dispositions of property constituting the making of Restricted Payments permitted by Section 7.06;
(m) the sale, assignment, transfer, Disposition, discount or forgiveness sale of past due accounts receivable in the ordinary course of business or in connection with the collection or compromise thereofbusiness; and
(hn) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property occurring in a single transaction or series of Xxxxxxxxx or any Subsidiary, including Equity Interests substantially related transactions the fair market value of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do which does not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; $5,000,000. provided, however, that any Disposition pursuant to clauses (aSection 7.05(a) through Section 7.05(l) (hother than Dispositions to any Loan Party) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (C&J Energy Services Ltd.), Credit Agreement (C&J Energy Services Ltd.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of damaged, negligible, surplus, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Disposition of accounts receivable in connection with the collection or compromise thereof;
(c) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
(d) the sale or other Disposition of Cash Equivalents;
(e) Dispositions of inventory accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Transaction;
(f) Dispositions of products, services or accounts receivables (including at a discount) in the ordinary course of business;
(cg) 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;
(dh) Dispositions of property by Xxxxxxxxx the Borrower or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Borrower, a Subsidiary Guarantor or Qualified Subsidiary;
(ei) Dispositions permitted by Section 7.04;
(fj) Dispositions licensing of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable IP Rights in the ordinary course of business or in connection accordance with industry practice;
(k) Dispositions of assets as a result of a foreclosure by the collection Borrower or compromise thereofany Subsidiary on any secured Investment or other transfer of title with respect to any secured Investment in default; and
(hl) in addition to Dispositions by the Dispositions Borrower and its Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default or Event of Default shall have occurred and be continuing and continuing, (ii) not less than 75% of the purchase price for such asset shall be paid to the Borrower or such Subsidiary in cash, (ii) the aggregate Fair Market Value of all property Disposed of in reliance on this Section 7.05(l) in any fiscal year of the Borrower shall not exceed $10,000,000 (provided that any amount so unused in any such fiscal year may be carried forward to any succeeding fiscal year so long as the aggregate Fair Market Value of any assets so Disposed in any such fiscal year pursuant to this Section 7.05(l) after giving effect to such carryover shall not exceed $20,000,000) and (iii) the Net Cash Proceeds thereof are applied in accordance with Section 2.06(b)(iii); provided that each such Disposition, Xxxxxxxxx of the following shall be deemed to be cash for the purposes of clause (ii) above:
(i) Cash Equivalents;
(ii) any liabilities (as shown on the Issuer’s most recent consolidated balance sheet) of the Borrower or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to any of the Obligations) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Borrower or such Subsidiary from further liability;
(iii) any securities, notes or other obligations received by the Borrower or any Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash within 180 days of receipt, to the extent of the cash received in pro forma compliance that conversion; and
(iv) any Designated Noncash Consideration received by the Borrower or a Subsidiary, and (ii) any Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (ii) does not exceed the greater of $10,000,000 and 2% of Total Assets at the time of receipt since the Closing Date, with the covenants set forth Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.;
Appears in 2 contracts
Samples: Credit Agreement (American Renal Associates LLC), Credit Agreement (American Renal Associates LLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of (i) inventory and (ii) equipment and goods held for sale in the ordinary course of business;
(ci) any exchange or swap of assets, or lease, assignment or sublease of any real property or personal property for like property for use in a business not in contravention with Section 6.19 and (ii) Dispositions of equipment or real property to the extent that (ix) such property is exchanged for credit against the purchase price of similar replacement property or (iiy) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary among the Borrower and the Restricted Subsidiaries; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx the transferee thereof must be a Loan Party, or to if it is a Wholly–Owned Subsidiary newly incorporated entity, such transferee must become a Loan Party (or amalgamate with a Loan Party) within thirty (30) days of Xxxxxxxxx or such Disposition, (ii) the Investment arising from such Disposition must be a permitted Investment in accordance with Section 7.02 (other than Section 7.02(e)) or (iii) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with the consummation of the transaction and the aggregate fair market value (as determined in good faith by the Borrower) of the property sold, leased, licensed, transferred or otherwise disposed by Loan Parties to a joint venture or to a non WhollyNon-Owned Subsidiary Loan Parties in reliance of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)this clause (d)(iii) in any fiscal year shall not exceed C$10,000,000;
(e) Dispositions permitted by Section 7.047.02 (other than Section 7.02(e)), Section 7.04 (other than Section 7.04(c) or (h)), Section 7.06 (other Section 7.06(d)) and Section 7.12 and Liens permitted by Section 7.01 (other than Section 7.01(m)(ii));
(f) Dispositions with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including pursuant to sale-leaseback transactions; provided that, the Net Cash Proceeds thereof are applied in accordance with Section 2.05(b)(ii);
(g) Dispositions of (i) Cash Equivalents and Eligible Investments (ii) other current assets that were Cash Equivalents when the original Investment in such assets was made and which thereafter fail to satisfy the definition of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including non-exclusive licenses or non-exclusive sublicenses of IP Rights or software, including the provision of software under an open source license, but excluding licenses of IP Rights tantamount to a sale, material exclusive licenses of IP Rights and material exclusive sublicenses of IP Rights), in each case in the ordinary course of businessbusiness and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(gi) Dispositions of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of C$15,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.01); provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Borrower or such Restricted Subsidiary that (i) are assumed by the transferee with respect to the applicable Disposition, (ii) for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing or (iii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding since the First Amendment Effective Date, not in excess of the greater of (i) C$30,000,000 and (ii) 1.2% of Consolidated Total Assets determined at the time of incurrence of such Disposition (calculated on a Pro Forma Basis), with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in Joint Ventures or any Subsidiary that is not Wholly Owned to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture or similar parties set forth in joint venture arrangements and/or similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection, compromise or settlement thereof or in bankruptcy or similar proceedings;
(m) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable provision of Law of any foreign jurisdiction and, in each case, any successor provision), any exchange of like property for use in any business conducted by the Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 6.19;
(o) the saleunwinding of any Cash Management Obligations or Swap Contract;
(p) sales or other dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of an office, assignmentfacility or other location in the ordinary course of business of the Borrower and the Restricted Subsidiaries, transferwhich consist of leasehold interests in the premises of such office, Dispositionfacility or other location, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office, facility or other location; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) such sale shall be on commercially reasonable prices and term in a bona fide arm’s length transaction;
(q) the lapse or abandonment (including failure to maintain) in the ordinary course of business of any registrations or applications for registration of any (i) intellectual property rights that are not necessary or desirable in the conduct of the business of the Borrower or any Restricted Subsidiaries, or (ii) immaterial intellectual property rights that in the good faith determination of the Borrower are no longer economically practicable or commercially desirable to maintain or use in the business of the Borrower and the Restricted Subsidiaries (taken as a whole);
(r) any Disposition (i) arising from foreclosure, casualty, condemnation, expropriation or any similar action or transfers by reason of eminent domain with respect to any property or other asset of the Borrower or any of its Restricted Subsidiaries or (ii) by reason of the exercise of termination rights under any lease, sublease, license, sublicense, concession or other agreement;
(s) any surrender or waiver of contractual rights or the settlement, release, recovery on or surrender of contractual rights or other claims of any kind;
(t) the discount or forgiveness of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable or Investments permitted under this Agreement, in each case in connection with the collection or compromise thereof;
(u) any Disposition of assets of the Borrower or any Restricted Subsidiary or sale or issuance of Equity Interests of any Restricted Subsidiary, which assets or Equity Interests so Disposed have an aggregate fair market value (as determined in good faith by the Borrower) of less than C$10,000,000 in the aggregate for any fiscal year;
(v) any grant in the ordinary course of business of (i) any non-exclusive license of patents, trademarks, software, know-how, copyrights, or any other intellectual property rights, including, but not limited to, grants of franchises or non-exclusive licenses, franchise or non-exclusive license master agreements and/or area development agreements, or (ii) any Permitted Exclusive License;
(w) Dispositions contemplated on the First Amendment Effective Date and set forth on Schedule 7.05(w);
(x) Dispositions required to be made to comply with the order of any Governmental Authority or applicable Laws;
(y) [reserved];
(z) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants;
(aa) [reserved];
(bb) de minimis amounts of equipment provided to employees;
(cc) the Borrower and any Restricted Subsidiary may (i) convert any intercompany Indebtedness to Equity Interests; (ii) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary and (iii) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of the Borrower (or any direct or indirect parent thereof) or any Subsidiary or any of their successors or assigns; and
(hdd) Dispositions in addition to the Dispositions permitted by clause (a) through clause (g) nature of this Section 7.05, Dispositions of property of Xxxxxxxxx asset swaps conducted on an arms-length basis with bona fide third parties unaffiliated with a Borrower or any SubsidiaryAffiliate of a Borrower; provided, including Equity Interests of that no such asset swap may be made at any Subsidiarytime that a Specified Default has occurred and is continuing; provided that such Dispositions consummated during the term any Disposition of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that any property pursuant to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesXxxxxxx 0.00(x), (ix), (x)(xxx), (x), (x), (x) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Dispositiondd), Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition as determined by the Borrower in good faith. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Holdings Inc.)
Dispositions. Xxxxxxxxx The Borrower will not, and will not cause or permit any of its Restricted Subsidiaries to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyProperty and Dispositions of Property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business;
(c) Dispositions of equipment or real property Property to the extent that (i) such property Property is exchanged for credit against the purchase price of similar replacement property Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx Property (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx or such Property is a Loan Party, the transferee thereof must be a Loan Party and (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting such transaction constitutes an Investment permitted by under Section 7.03(h)6.05;
(e) Dispositions permitted by Sections 6.03 and 6.04 and Liens permitted by Section 7.046.02;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; andthereof (other than in connection with financing transactions);
(h) leases, subleases, licenses or sublicenses, in addition each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(i) transfers of Property to the Dispositions permitted by clause extent subject to Casualty Events;
(aj) through clause (g) any Disposition of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any SubsidiaryProperty; provided that (i) at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent Disposition (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to other than any such Disposition represents more than five percent (5%) made pursuant to a legally binding commitment entered into at a time when no Event of the total assets of Xxxxxxxxx and its SubsidiariesDefault exists), (i) no Default or Event of Default shall have occurred and be continuing and exist or would result from such Disposition, (ii) after giving effect to each at the time of any such Disposition, Xxxxxxxxx the aggregate book value of all property Disposed of in reliance on this clause (j) (including such Disposition) would not exceed $40,000,000 in the aggregate and (iii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $5,000,000, the Borrower or a Restricted Subsidiary shall be receive not less than 75% of such consideration in pro forma compliance with the covenants set forth in Section 7.12 form of this Agreementcash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash: any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than Specified Indebtedness or liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing;
(k) Dispositions of Investments in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(l) any Disposition of Property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) at the time of any such Disposition, the aggregate book value of all property Disposed of in reliance on this clause (l) would not exceed $75,000,000 in the aggregate, (iii) with respect to any Disposition pursuant to clauses this clause (al) through (h) of property having for a book value purchase price in excess of $25,000,000 5,000,000, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash: any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than Specified Indebtedness and liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing and (iv) the Borrower shall prepay Term Loans in an amount up to the Net Cash Proceeds received from such Disposition in the manner and to the extent required by Section 2.10(b); provided that any Disposition of any Property to the extent classified pursuant to one or more of Sections 6.11(j) and (l) shall be for no less than the fair market valuevalue of such Property at the time of such Disposition determined in good faith by the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Crown Media Holdings Inc), Credit Agreement (Crown Media Holdings Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of damaged, negligible, surplus, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and [reserved];
(c) leases or subleases to third persons in the ordinary course of businessbusiness that do not interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries;
(cd) the sale or other Disposition of Cash Equivalents;
(e) Dispositions of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Transaction;
(f) Dispositions of products or services in the ordinary course of business or accounts receivables in connection with the collection or compromise thereof (including at a discount);
(g) Dispositions of equipment or real property to the extent that (i) such property is 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;
(dh) Dispositions of property (including Equity Interests of Subsidiaries) by Xxxxxxxxx the Borrower or any Restricted Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Borrower, a Subsidiary Guarantor or Qualified Subsidiary;
(ei) Dispositions permitted by Section 7.04;
(fj) Dispositions licensing of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable IP Rights in the ordinary course of business or in connection accordance with industry practice;
(k) Dispositions of assets as a result of a foreclosure by the collection Borrower or compromise thereofany Restricted Subsidiary on any secured Investment or other transfer of title with respect to any secured Investment in default; and
(hl) in addition to Dispositions by the Dispositions Borrower and its Restricted Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default shall have occurred and be continuing, (ii) not less than 75% of the purchase price for such asset shall be paid to the Borrower or Event such Restricted Subsidiary in cash, (iii) the aggregate Fair Market Value of all property Disposed of in reliance on this Section 7.05(l) in any fiscal year of the Borrower shall not exceed $15,000,000 (provided that any amount so unused in any such fiscal year may be carried forward to any succeeding fiscal year so long as the aggregate Fair Market Value of any assets so Disposed in any such fiscal year pursuant to this Section 7.05(l) after giving effect to such carryover shall not exceed $25,000,000) and (iv) the Net Cash Proceeds thereof are applied in accordance with Section 2.05(b)(ii); provided that each of the following shall be deemed to be cash for the purposes of clause (ii) above:
(i) Cash Equivalents;
(ii) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet) of the Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to any of the Loan Obligations) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Borrower or such Restricted Subsidiary from further liability;
(iii) any securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of receipt, to the extent of the cash received in that conversion; and
(iv) any Designated Noncash Consideration received by the Borrower or a Restricted Subsidiary, the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (iv) does not exceed the greater of $15,000,000 and 2.0% of Total Assets at the time of receipt since the Signing Date, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(m) Dispositions of Equity Interests of a Qualified Subsidiary to Strategic Investors in connection with the start-up of such Qualified Subsidiary;
(n) so long as no Default shall have occurred and be continuing and continuing, any Disposition of Equity Interests held by the Borrower or a Restricted Subsidiary in a Qualified Subsidiary in exchange for cash, Cash Equivalents or Equity Interests in another Qualified Subsidiary, so long as any such cash or Cash Equivalents received in such exchange are used within 365 days of such Disposition to acquire Equity Interests in a Qualified Subsidiary; provided that the requirement to so acquire such Equity Interests of a Qualified Subsidiary shall be deemed to be satisfied with respect to any Net Cash Proceeds from the sale or issuance of Equity Interests of a Qualified Subsidiary to the extent an amount equal to such Net Cash Proceeds was used to purchase Equity Interests in a Qualified Subsidiary within 365 days prior to the receipt of such Net Cash Proceeds (ii) after giving it being understood that the term “Net Cash Proceeds” as used in this clause shall not give effect to each such Disposition, Xxxxxxxxx shall be the first and second provisos in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses clause (a) through of the definition of “Net Cash Proceeds”);
(ho) any Intercompany Loan Refinancing if and to the extent the proceeds thereof are applied in accordance with Section 2.05(b)(ii);
(p) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(q) any sale or Disposition deemed to occur in connection with creating or granting any Lien pursuant to Section 7.01 (but not the sale or other Disposition of the property having a book value subject to such Lien); and
(r) the assignment or other Disposition to Intercompany Notes Holdings by the Borrower or any Restricted Subsidiary of such Person’s right, title and interest in excess and to the indebtedness and obligations of certain Qualified Subsidiaries in an aggregate principal amount of up to $25,000,000 shall be for fair market value28,000,000 arising pursuant to the Intercompany Notes further described in the Intercompany Note Disposition Agreement (such assignment or other Disposition, the “Intercompany Note Disposition”).
Appears in 2 contracts
Samples: First Lien Credit Agreement (American Renal Associates Holdings, Inc.), First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) (x) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of business;
, (by) Dispositions of inventory property no longer used or useful in the conduct of the business of the Parent Borrower or any Restricted Subsidiary and (z) Dispositions to landlords of improvements made to leased real property pursuant to customary terms of leases entered into in the ordinary course of business;
(b) Dispositions of (i) inventory, goods held for sale in the ordinary course of business and (ii) immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned) in the ordinary course of business, including but not limited to Dispositions of medical devices or other medical products pursuant to a voluntary or mandatory recall thereof or of assets in connection with the consolidation of billing centers;
(c) Dispositions of 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 Xxxxxxxxx to the Parent Borrower or any Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx or Loan Party, (ii) to such Disposition is for cash and shall be for no less than the fair market value of such property at the time of such Disposition (or any promissory note or other non-cash consideration received in respect thereof must be a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment Restricted Payment permitted by Section 7.03(h7.06 (other than Section 7.06(b)(xviii))) or a Permitted Investment or (iii) if such transaction constitutes an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment;
(e) Dispositions that otherwise constitute a Permitted Investment, are permitted by Section 7.047.04 (other than Section 7.04(h)) or otherwise constitute a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) and Liens permitted by Section 7.01 (other than Section 7.01(l)(ii));
(f) Dispositions of property pursuant to sale-leaseback transactions; provided that to the extent the aggregate Net Proceeds from all such Dispositions since the Closing Date exceeds $40,000,000, such excess shall be reinvested in accordance with the definition of “Net Proceeds” or otherwise applied to prepay Loans in accordance with Section 2.05(b)(ii)
(g) Dispositions of cash and Cash Equivalents;
(h) (i) leases, subleases, licenses or sublicenses (including agreements under which the Parent Borrower or any Restricted Subsidiary has granted rights to end users to access and use the Parent Borrower’s or any Restricted Subsidiary’s products, technologies or services), in each case in the ordinary course of business and which do not materially interfere with the business of the Parent Borrower and the Restricted Subsidiaries, taken as a whole, and (ii) the abandonment of intellectual property rights (A) in the ordinary course of business or which in the reasonable good faith determination of the Administrative Borrower are not material to the conduct of the business of the Parent Borrower and the Restricted Subsidiaries taken as a whole or (B) that are no longer economically practicable or commercially reasonable to maintain;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Event of Default shall have occurred and be continuing or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $8,500,000, the Parent Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (free and Eligible Investments clear of all Liens at the time received (other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), clause (iii) of Section 7.01(k), Section 7.01(m), clauses (i) and (ii) of Section 7.01(r), Section 7.01(v), Section 7.01(bb), Section 7.01(cc), Section 7.01(dd), Section 7.01(gg), Section 7.01(ii), Section 7.01(jj) and Section 7.01(ll) and in each case, any permitted modifications, replacements, renewals or extensions of such Liens pursuant to Section 7.01(aa))); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrower’ most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i) are assumed by the transferee with respect to the applicable Disposition or (ii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Parent Borrower or any of its Restricted Subsidiaries) and, in the case of clause (i), for which each Parent Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Parent Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) in connection with the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Parent Borrower or any of its Restricted Subsidiaries), to the extent that the Parent Borrower and each of its Restricted Subsidiaries are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by the Parent Borrower or the applicable Restricted Subsidiary having an aggregate fair market value, taken together with all other non-cash consideration received pursuant to this clause (D) (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $73,500,000 and 35.0% of Trailing Four Quarter Consolidated EBITDA as determined at the time of such applicable Dispositions (net of any such non-cash consideration subsequently converted into cash and Cash Equivalents);
(k) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Parent Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 7.07;
(l) Dispositions or discounts, without recourse of accounts receivable or notes receivable in connection with the collection or compromise thereof in the ordinary course of business or the conversion of accounts receivable to notes receivable in the ordinary course of business;
(gm) Dispositions of ABL Priority Collateral not otherwise permitted by this Section 7.05 to the sale, assignment, transfer, Disposition, discount extent the net proceeds thereof are applied to repay or forgiveness cash collateralize the ABL Obligations;
(n) any swap of accounts receivable 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 Parent Borrower and the Subsidiaries as a whole, as determined in good faith by the Administrative 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 similar binding arrangements;
(q) the unwinding of any Swap Contract or any Cash Management Services permitted under Section 7.03(l);
(r) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(s) any Disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing;
(t) Dispositions by any Loan Party of any wholly-owned Restricted Subsidiary of the type described in clauses (d) and (e) of the definition of Excluded Subsidiary to the extent consisting of contributions or other Dispositions of Equity Interests in other wholly-owned Restricted Subsidiaries of the type described in clauses (d) and (e) of the definition of Excluded Subsidiary to such wholly-owned Restricted Subsidiary;
(u) Dispositions (i) of non-core assets acquired in connection with Permitted Acquisitions or any other acquisition or Investment permitted under this Agreement; provided that the aggregate amount of such sales shall not exceed 25% of the fair market value of the acquired entity or business, (ii) made to satisfy the Parent Borrower’s or any Restricted Subsidiary’s obligations under any non-compete agreement or (ii) made to obtain the approval of any anti-trust authority;
(v) Dispositions set forth on Schedule 7.05;
(w) any issuance of Equity Interests in any Restricted Subsidiary to any officer, director, consultant, advisor, service provider or employee of the Borrowers or any Restricted Subsidiary in respect of services provided to the Borrowers or a Restricted Subsidiary in the ordinary course of business approved by the Board of Directors of the Borrower;
(x) cancellation of Indebtedness owing to the Parent Borrower or any Restricted Subsidiary from members of management of the Parent Borrower, any of the Parent Borrower’s direct or indirect parent companies or any of the Parent Borrower’s Restricted Subsidiaries in connection with the collection repurchase or compromise thereofredemption of Equity Interests of any of the Parent Borrower’s direct or indirect parent companies;
(y) Dispositions of assets not constituting Collateral;
(z) any Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost-sharing agreements with any Borrower or any Subsidiary and settle any crossing payments in connection therewith or (ii) surrender, terminate or waive contractual rights and settle or waive contractual or litigation claims; and
(haa) Dispositions in addition an amount not to exceed the Dispositions permitted by clause (a) through clause (g) greater of this Section 7.05, Dispositions $5,250,000 and 2.5% of property of Xxxxxxxxx or Trailing Four Quarter Consolidated EBITDA in the aggregate in any Subsidiary, including Equity Interests of any Subsidiaryfiscal year; provided that such Dispositions consummated during the term any Disposition of any property pursuant to this Agreement in the aggregate do not exceed twenty-five percent Section 7.05 (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that except pursuant to the extent the property subject to any such Disposition represents more than five percent Sections 7.05(a), (5%) of the total assets of Xxxxxxxxx and its Subsidiariesd), (e), (h), (i), (l), (p), (q), (r), (s), (v), (w), (x), (z) no Default or Event of Default shall have occurred and be continuing and (iiaa) after giving effect and except for (x) Dispositions from the Parent Borrower or a Guarantor to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that Parent Borrower or a Guarantor or (y) Dispositions from any Disposition pursuant wholly-owned Non-Loan Party to clauses (aany other wholly-owned Non-Loan Party) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Parent Borrower or any of its Restricted Subsidiaries, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Administrative Borrower that such Disposition is not prohibited by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 propertyproperty or (iii) such property is no longer used or useful in the ordinary course of business;
(db) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary wholly-owned Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Restricted Subsidiary, the transferee thereof must either be the Borrower or (ii) to a joint venture Restricted Subsidiary; provided, further that if the transferor is a Guarantor, the transferee must be either the Borrower or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Guarantor;
(ec) Dispositions permitted by Section 7.04;
(d) Dispositions not otherwise permitted under clauses (a), (b) or (c) above, provided that (i) no Event of Default has occurred or would result therefrom, and (ii) the purchase price of the asset being Disposed of is payable in not less than 75% cash; provided, however, that any Disposition pursuant to Section 7.05(d) shall be for the fair market value of such asset;
(e) Dispositions of property, whether now owned or hereafter acquired, that is obsolete, worn out, damaged, surplus or otherwise no longer used or useful in the ordinary course of business;
(f) Dispositions of Cash Equivalents and Eligible Investments Equivalents, inventory or other current assets in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount sales or forgiveness of accounts receivable other Dispositions without recourse and in the ordinary course of business of overdue or disputed accounts receivable in connection with the compromise or collection thereof;
(h) the licensing or compromise thereofsublicensing of intellectual property rights and other transfers of copyrighted material in the ordinary course of business; and
(hi) in addition to the Dispositions permitted by clause (a) through clause (g) settlement of this Section 7.05tort or other litigation claims, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to if any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default settled claim shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value or potential claim in excess of $25,000,000 shall 5,000,000, the board of directors or similar governing entity of the Borrower determines it to be for fair market valueand reasonable in light of the circumstances; and provided, further, that no Disposition will be permitted of any of the following assets: (A) Newsday or its related website xxx.xxxxxxx.xxx, and (B) the Cablevision Notes except to the extent permitted under Section 7.18.
Appears in 2 contracts
Samples: Credit Agreement (Cablevision Systems Corp /Ny), Credit Agreement (CSC Holdings Inc)
Dispositions. Xxxxxxxxx Until the Rollover Date, the Borrower will not, and will not cause or permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyProperty and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of inventory and immaterial assets, in each case, in the ordinary course of business;
(c) Dispositions of equipment or real property Property to the extent that (i) such property Property is exchanged for credit against the purchase price of similar replacement property Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) Property to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Subsidiary;
(e) (i) Dispositions permitted by Sections 6.04 and 6.05 and (ii) Liens permitted by Section 7.046.02 and (iii) Dispositions of Receivables and Permitted Receivables Related Assets in connection with Permitted Receivables Facilities;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and;
(h) leases, subleases, licenses or sublicenses, in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement each case in the aggregate ordinary course of business and which do not exceed twenty-five percent (25%) materially interfere with the business of the total assets Borrower and the Subsidiaries;
(i) transfers of Xxxxxxxxx and its Subsidiaries; provided further that Property to the extent the property subject to any such Disposition represents more than five percent Casualty Events;
(5%j) Dispositions of other Property by the total assets of Xxxxxxxxx Borrower and its SubsidiariesSubsidiaries with an aggregate fair market value (as determined in good faith by the Borrower) for all such Dispositions in any fiscal year not to exceed $100,000,000;
(k) Dispositions of Investments in, (i) no Default and issuances of any Equity Interests in, joint ventures to the extent required by, or Event of Default shall have occurred and be continuing and (ii) after giving effect made pursuant to each such Dispositioncustomary buy/sell arrangements between, Xxxxxxxxx shall be in pro forma compliance with the covenants joint venture parties set forth in Section 7.12 of this Agreementjoint venture arrangements and similar binding arrangements;
(l) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in its best interests and not materially adverse to the Lenders and, if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to another Loan Party; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.and
Appears in 2 contracts
Samples: Interim Loan Agreement (Constellation Brands, Inc.), Interim Loan Agreement (Constellation Brands, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 property, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property, or (iii) in the case of equipment or real property, such equipment or real property is no longer useful in or material to the continued operation of the Company’s or a Subsidiary’s business;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Company or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)owned Subsidiary;
(e) Dispositions permitted by Section 7.047.06;
(f) Dispositions a sale or transfer of Cash Equivalents and Eligible Investments Permitted Receivables pursuant to one or more Permitted Receivables Facilities, subject to the limitations set forth in the ordinary course of businessSection 7.01(j) with respect to any such Permitted Receivables Facilities;
(g) the saledispositions of leases of property, assignmentincluding real property, transfer, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business or in connection not materially interfering with the collection conduct of the business of the Company and its Subsidiaries;
(h) dispositions pursuant to unwinding of any Swap Contracts;
(i) the Disposition of all or compromise thereofany portion of the energy, chemicals and resources business of the Company, its Subsidiaries and certain joint ventures, including in a transaction with WorleyParsons Ltd. which is consistent in all material respects with the Disposition of such business as announced on October 21, 2018 (the “ECR Disposition”); and
(hj) in addition to Dispositions by the Dispositions Company and its Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary7.07; provided that (i) at the time of such Dispositions consummated Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this subsection (j) during the term of this Agreement in the aggregate do shall not exceed twenty-five percent (25%) 20% of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) Consolidated Net Worth of the total assets Company at the time of Xxxxxxxxx and its Subsidiariessuch Disposition; provided, that if the net proceeds from any Disposition is applied to a Debt Prepayment Application or a Property Reinvestment Application within one year after such Disposition, then such Disposition, only for the purpose of determining compliance with this subsection (ij) no Default on or Event after the net proceeds are so applied, shall be deemed not to be a Disposition for purposes of Default shall have occurred and be continuing and the calculation in clause (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses subsection (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valuej).
Appears in 2 contracts
Samples: Credit Agreement (Jacobs Engineering Group Inc /De/), Credit Agreement (Jacobs Engineering Group Inc /De/)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of inventory and goods held for sale in the ordinary course of business and Dispositions of immaterial assets (including failing to pursue or allowing any registrations or any applications for registration of any IP Rights to lapse or go abandoned in the ordinary course of business if, in the Borrower’s reasonable opinion, such discontinuance is desirable in the conduct of its 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 propertyproperty (which replacement property is actually promptly purchased);
(di) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (A) the transferee thereof must be a Loan Party or (B) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02; and (ii) Dispositions to Holdings, the Borrower or a Restricted Subsidiary constituting debt forgiveness;
(e) (i) Dispositions permitted by Sections 7.02, 7.04 and 7.06, Liens permitted by Section 7.01 and (ii) Dispositions of property by Xxxxxxxxx the Borrower or any a Restricted Subsidiary of Xxxxxxxxx (i) pursuant to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollysale-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04leaseback transactions;
(f) Dispositions of Cash Equivalents and Eligible Investments Equivalents;
(g) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business;
(gh) transfers of property subject to Casualty Events;
(i) Dispositions not otherwise permitted under this Section 7.05; provided that (A) the saleBorrower or Restricted Subsidiary, assignmentas the case may be, transferreceives consideration at the time of such Disposition at least equal to the fair market value (such fair market value to be determined in good faith by the Borrower at the time of contractually agreeing to such Disposition) and (B) with respect to any Disposition pursuant to this clause (i) for a purchase price in excess of $75,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents); provided, however, that for the purposes of this clause (i), the following shall be deemed to be cash:
(A) any liabilities (as shown on Holdings’, the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (x) are assumed by the transferee with respect to the applicable Disposition or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries) and, in each case, for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing,
(B) any securities, notes or other obligations received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition,
(C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or any Restricted Subsidiary), discount to the extent that the Borrower and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and
(D) (i) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess of 5.0% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, (ii) any Investment received by the Borrower or a Restricted Subsidiary that is treated as an Investment pursuant to Section 7.02(k), (o) or (p) or (iii) any Investment that the Borrower shall designate, solely for the purposes of this Section 7.05(i) as a Restricted Payment pursuant to Section 7.06(n), in each case with the fair market value of each item of Designated Non-Cash Consideration, Investment or Restricted Payment being measured at the time received and without giving effect to subsequent changes in value;
(j) Dispositions listed on Schedule 7.05(j) (“Scheduled Dispositions”);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions, discounts or forgiveness of accounts receivable in connection with the collection or compromise thereof;
(m) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of its Restricted Subsidiaries that is not in contravention of Section 7.07;
(o) the unwinding of any Swap Contract;
(p) any Disposition of Securitization Assets to a Securitization Subsidiary;
(q) 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;
(r) the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law; and
(s) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable.; and
(t) Dispositions to Restricted Subsidiaries in connection with the collection or compromise thereof; and
(h) in addition internal business restructuring, which was described to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that Joint Lead Arrangers prior to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.Amendment No. 2
Appears in 2 contracts
Samples: Revolving Facility Refinancing Amendment (Sabre Corp), Credit Agreement (Sabre Corp)
Dispositions. Xxxxxxxxx The Borrower will not, and will not cause or permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyProperty and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of inventory and immaterial assets, in each case, in the ordinary course of business;
(c) Dispositions of equipment or real property Property to the extent that (i) such property Property is exchanged for credit against the purchase price of similar replacement property Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) Property to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Subsidiary;
(e) (i) Dispositions permitted by Sections 6.04 and 6.05 and (ii) Liens permitted by Section 7.046.02 and (iii) Dispositions of Receivables and Permitted Receivables Related Assets in connection with Permitted Receivables Facilities;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Subsidiaries;
(i) transfers of Property to the extent subject to Casualty Events;
(j) Dispositions of other Property by the Borrower and its Subsidiaries with an aggregate fair market value (as determined in good faith by the Borrower) for all such Dispositions in any fiscal year not to exceed 15% of the Consolidated Tangible Assets as at the last day of the immediately preceding fiscal year with unused amounts from any fiscal year being available for additional Dispositions in the next succeeding fiscal year only (it being understood that any Disposition in any fiscal year pursuant to this clause (j) shall be deemed first to have utilized any amount carried forward from any prior year before being applied to the 15% limitation referred to above for such fiscal year);
(k) Dispositions of Investments in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in its best interests and not materially adverse to the Lenders and, if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to another Loan Party; and
(hm) in addition to sale and leasebacks of properties acquired following the Dispositions permitted by clause (a) through clause (g) Closing Date within 180 days of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarythe acquisition thereof; provided that for the purpose of making all calculations under Section 6.10(j), the Borrower shall use the fair market value of such Dispositions consummated during Property at the term time of this Agreement such Disposition in the aggregate do not exceed twenty-five percent (25%) good faith determination of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueBorrower.
Appears in 2 contracts
Samples: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, excess, damaged, no longer useful or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) (i) Dispositions of inventory and in the ordinary course of business;
, (cii) Dispositions of equipment or real property to the extent that (i) such property equipment is exchanged for credit against the purchase price of similar replacement property, and (iii) Dispositions of overdue accounts receivable in the ordinary course of business and consistent with the past practices of the business of the Borrower;
(c) Dispositions of property by any Subsidiary to the Borrower or (ii) to a wholly-owned Subsidiary; provided that if the proceeds transferor of such Disposition are reasonably promptly applied to property is a Guarantor, the purchase price of such replacement propertytransferee thereof must either be the Borrower or another Subsidiary that is a Guarantor;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment Investments permitted by Section 7.03(h)Sections 7.02 and Dispositions permitted by 7.04;
(e) Dispositions permitted by Section 7.04the Borrower and its Subsidiaries of property pursuant to sale and leaseback transactions, provided that the lesser of book value and fair market value of all property so Disposed of shall not exceed $5,000,000 from and after the Closing Date;
(f) Dispositions licenses of Cash Equivalents and Eligible Investments intellectual property in the ordinary course of business;
(g) the sale, assignment, transfer, Retail Facilities Disposition, discount or forgiveness of accounts receivable ; provided that the Net Cash Proceeds shall be deposited upon receipt in the ordinary course Retail Facilities Proceeds Account and shall be available to the Borrower solely to finance Permitted Acquisitions in accordance with Section 7.02(f), to purchase assets used or useful in the business of business the Borrower and its Subsidiaries (other than pursuant to Permitted Acquisitions) or in connection with to repay the collection or compromise thereofLoans and interest thereon;
(h) Non-Core Dispositions; and
(hi) in addition to Any Disposition by the Dispositions Borrower and its Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, 7.05 so long as the Net Cash Proceeds received pursuant to any such single Disposition or series of related Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement$10,000,000; provided, however, that any Disposition pursuant to the foregoing clauses shall be for at least fair market value and any Disposition pursuant to clauses (a) through g), (h) of property having a book value in excess of $25,000,000 and (i) shall be for fair market valueat least 75% cash consideration payable at the closing of such Disposition.
Appears in 2 contracts
Samples: Term Credit Agreement (Keystone Automotive Operations Inc), Revolving Credit Agreement (Keystone Automotive Operations Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Permitted Investments 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Company or to a Wholly–Owned wholly-owned Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or a Subsidiary Guarantor; provided further that if the transferor of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to such property is TP Luxembourg, then such transfer shall comply with the extent constituting an Investment permitted by requirements set forth in Section 7.03(h7.05(i);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions non-exclusive licenses of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable IP Rights in the ordinary course of business or in connection with for terms not exceeding five years;
(g) Dispositions of Intangible Assets directly related to the collection or compromise thereof; andDisposition of any tangible asset permitted by this Section 7.05;
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or Intangible Assets by the Company, Subsidiary Guarantors and TP Luxembourg to any Subsidiary, including Equity Interests of any Foreign Subsidiary; provided that (i) the aggregate book value of all such Dispositions consummated Intangible Assets Disposed of in reliance on this clause (h) during the term of this Agreement shall not exceed $200,000,000 and (ii)(x) if the transferee of such Intangible Asset is a first-tier Foreign Subsidiary (other than TP Luxembourg), the holders of Equity Interests in such Foreign Subsidiary shall pledge 65% of the Voting Interests of such Foreign Subsidiary (or if the relevant Person shall own less than 65% of such Voting Interests, then 100% of the Voting Interests of such Foreign Subsidiary owned by such Person so long as the aggregate amount of such Voting Interests of such Foreign Subsidiary pledged by the Company and its Subsidiaries does not exceed 65% of the aggregate amount of such Voting Interests of) and 100% of the nonvoting Equity Interests (at all times exclusive of the meaning of “stock entitled to vote” as described in Treasury Regulation Section 1.956-2(c)(2)) of such Foreign Subsidiary, and (y) if the transferee of such Intangible Asset is not a first-tier Foreign Subsidiary, the holders of Equity Interests in the first-tier Foreign Subsidiary (other than TP Luxembourg) that is the direct or indirect parent of such Foreign Subsidiary shall pledge 65% of the Voting Interests of such Foreign Subsidiary (or if the relevant Person shall own less than 65% of such Voting Interests, then 100% of the Voting Interests of such Foreign Subsidiary owned by such Person so long as the aggregate do amount of such Voting Interests of such Foreign Subsidiary pledged by the Company and its Subsidiaries does not exceed twenty65% of the aggregate amount of such Voting Interests of) and 100% of the nonvoting Equity Interests (at all times exclusive of the meaning of “stock entitled to vote” as described in Treasury Regulation Section 1.956-five percent (25%2(c)(2)) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, Foreign Subsidiary;
(i) Dispositions of tangible assets by the Company and its Subsidiaries to any Subsidiary; provided that (i) at the time of such Disposition, no Default shall exist or Event of Default shall have occurred and be continuing would result from such Disposition and (ii) after giving effect to each any such Disposition and all other permitted Dispositions, (A) the Company, Subsidiary Guarantors and TP Luxembourg (on an unconsolidated basis) own at least 60% of the Consolidated Tangible Assets of the Company and its Subsidiaries and (B) the Company, Subsidiary Guarantors and TP Luxembourg (on an unconsolidated basis) represent at least of 60% of total revenues of the Company and its Subsidiaries (calculated on a consolidated basis for the most recent period for which financial statements are available); for the avoidance of doubt, reference herein to TP Luxembourg on an unconsolidated basis specifically means without consolidating the tangible assets or total revenues of any of its directly or indirectly owned Subsidiaries; and
(j) Dispositions of tangible assets by the Company and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, Xxxxxxxxx no Default shall be exist or would result from such Disposition, (ii) the aggregate book value of all such tangible assets Disposed of in pro forma compliance with reliance on this clause (j) during the covenants set forth in Section 7.12 term of this AgreementAgreement shall not exceed 10% of the amount of Consolidated Tangible Assets of the Company and its Subsidiaries as of the Initial Funding Date; and (iii) after giving effect to any such Disposition and all other permitted Dispositions, (A) the Company, Subsidiary Guarantors and TP Luxembourg (on an unconsolidated basis) own at least 60% of the Consolidated Tangible Assets of the Company and its Subsidiaries and (B) the Company, Subsidiary Guarantors and TP Luxembourg (on an unconsolidated basis) represent at least of 60% of total revenues of the Company and its Subsidiaries (calculated on a consolidated basis for the most recent period for which financial statements are available); for the avoidance of doubt, reference herein to TP Luxembourg on an unconsolidated basis specifically means without consolidating the tangible assets or total revenues of any of its directly or indirectly owned Subsidiaries; provided, however, that any Disposition pursuant to clauses (a), (b), (c), (e), (f) through and (hj) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Towers Watson Delaware Inc.), Credit Agreement (Towers Watson & Co.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out propertyproperty or property that is no longer used or useful for the business of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired, in each case in the ordinary course of business;
(b) Dispositions of inventory and Cash Equivalents, charters of vessels, and leases of equipment, in each case in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent Borrower or to a Wholly Owned Restricted Subsidiary; provided that (i) if the transferor of such property is exchanged for credit against the purchase price Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor; notwithstanding the foregoing, this Section 7.05(c) shall not prohibit the assignment of similar replacement property service contracts by Loan Parties to Foreign Subsidiaries in the ordinary course of business as necessary to obtain the benefits of foreign tax treaties or (ii) the proceeds of credits; provided that payments received with respect to any such Disposition contract are reasonably required to be, and are, paid or distributed promptly applied to the purchase price of such replacement propertya Loan Party;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04, and (ii) Restricted Payments permitted by Section 7.06;
(e) the Disposition of assets received pursuant to Section 7.02(e)(ii);
(f) Dispositions the grant in the ordinary course of Cash Equivalents business of any non-exclusive license of patents, trademarks, registrations therefor and Eligible Investments other similar intellectual property;
(g) 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;
(h) Dispositions, in one transaction or a series of related transactions, of assets (other than Equity Interests of Subsidiaries) of the Borrower and the Restricted Subsidiaries with a fair market value not exceeding $2,500,000 and made in the ordinary course of business;
(gi) the sale, assignment, transfer, Disposition, discount exchange of any vessel for any vessel of equivalent value (including any cash or forgiveness Cash Equivalents necessary in order to achieve an exchange of accounts receivable equivalent value); provided that any vessel constituting Collateral may be traded or exchanged hereunder only for a vessel or vessels which become Collateral in the ordinary course of business or in connection accordance with the collection requirements of Section 6.13 (and which vessel must be flagged under a jurisdiction in which any vessel of the Borrower or compromise thereof; andany of its Subsidiaries is flagged on the date of this Agreement, or other jurisdiction reasonably acceptable to the Administrative Agent);
(hi) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx Borrower or any Restricted Subsidiary may Dispose of (including by means of a merger of such Subsidiary, including ) the Equity Interests of any a Restricted Subsidiary; provided that (A) no less than all of the Equity Interests of the Borrower and its Restricted Subsidiaries in the applicable Subsidiary are Disposed of concurrently, (B) all such Dispositions consummated during shall be made for fair market value and (C) the term Subsidiary so Disposed of shall not, on an aggregate basis with all other Subsidiaries Disposed of pursuant to this Agreement in the Section 7.05(j), account for (1) assets having an aggregate do not exceed twenty-five percent (25%) book value of greater than 5% of the consolidated total assets of Xxxxxxxxx the Borrower and its Subsidiaries; Restricted Subsidiaries or (2) Consolidated EBITDA exceeding 5% of the Consolidated EBITDA of the Borrower, in each case determined as of the end of the fiscal quarter most recently ended and (ii) the Borrower or any Restricted Subsidiary may Dispose of (including by means of a merger of such Subsidiary) the Equity Interests of an Unrestricted Subsidiary provided further that no Guarantee issued by the Borrower on behalf of such Unrestricted Subsidiary’s obligations under a vessel construction contract remains outstanding at the time of or immediately after giving effect to such Disposition;
(k) the extent the granting of any Lien permitted hereunder and dispositions of property subject to any such Disposition represents more than five percent Lien that is transferred to the lienholder or its designee in satisfaction or settlement of such lienholder’s claim;
(5%l) of the total assets of Xxxxxxxxx and its Subsidiaries, Dispositions not otherwise permitted under this Section 7.05; provided that (i) no Default or Event Person may Dispose of Default shall have occurred and be continuing and Equity Interests of Subsidiaries pursuant to this clause (l), (ii) after giving effect to each at the time of such Disposition, Xxxxxxxxx no Default shall exist or immediately would result from such Disposition, (iii) no less than 75% of the consideration received for any such asset shall be in pro forma compliance with the covenants set forth in Section 7.12 form of cash (which, solely for purposes of this Agreementclause (l), shall be deemed to include any liabilities, as shown on the Borrower’s most recent consolidated balance sheet, of the Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Loans or any Guaranty thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Borrower or such Restricted Subsidiary from further liability), and (iv) the fair market value of all property Disposed of in reliance on this clause (l) in any fiscal year shall not exceed $10,000,000; and
(m) the Disposition comprising the Helix House Sale-Leaseback; provided, however, that any Disposition pursuant to clauses (a) through (d)(i), (g)(ii), (h), (i), (j), and (l) of property having a book value in excess of $25,000,000 shall be for fair market value. For purposes of determining compliance with this Section 7.05, the fair market value of any property Disposed of for 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 portion of the consideration, as reasonably determined by the Borrower in good faith.
Appears in 2 contracts
Samples: Credit Agreement (Helix Energy Solutions Group Inc), Credit Agreement (Helix Energy Solutions Group Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyproperty in the ordinary course of business, or property no longer used or useful in the business of the Borrower or such Subsidiary, in each case whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Cash Equivalents in the ordinary course of business;
(c) Dispositions of equipment or real property other than through a lease transaction 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 or to Indebtedness incurred to acquire such replacement property; and Dispositions of equipment or real property through a lease transaction to the extent that such lease is on fair and reasonable terms in an arm’s-length transaction;
(d) Dispositions of property by Xxxxxxxxx any Subsidiary to the Borrower or any other Subsidiary of Xxxxxxxxx or by the Borrower to any Subsidiary;
(e) (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or Dispositions permitted by Section 7.04 and (ii) to Dispositions for fair market value in a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting transaction in exchange for which an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.047.03 is received;
(f) Dispositions licenses or sublicenses of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable IP Rights in the ordinary course of business or in connection and substantially consistent with the collection or compromise thereof; andpast practice;
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default or Event of Default shall have occurred and occurred, be continuing and (ii) after giving effect to each or would result from such Disposition, Xxxxxxxxx shall be ;
(h) Dispositions of Permitted Securitization Transferred Assets pursuant to any Permitted Receivables Facility;
(i) Dispositions of accounts receivable in pro forma compliance connection with the covenants set forth in compromise, settlement or collection thereof consistent with past practice;
(j) Dispositions of property to the extent that such property constitutes an Investment permitted by Section 7.12 7.03(d)(ii), (l) or (m) or another asset received as consideration for the Disposition of any asset permitted by this AgreementSection 7.05; and
(k) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary; provided, however, that any of the foregoing Dispositions (other than any Disposition pursuant to clauses clause (a), (d), (e)(i) through or (hk) of property having a book value in excess of $25,000,000 this Section 7.05) shall be for fair market value, as determined reasonably and in good faith by, as the case may be, the Borrower or the applicable Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Ashland Inc.), Credit Agreement (Ashland Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of unused, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Company or to a Wholly–Owned wholly-owned Subsidiary of Xxxxxxxxx the Company; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must be an entity in which such Subsidiary Guarantor may make an Investments pursuant to Section 7.02(d), (e) or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment h), such Dispositions shall be treated as Investments under such Section and such Investments must be permitted by Section 7.03(h)thereunder;
(e) Dispositions of accounts receivable in connection with the collection or compromise of such accounts receivable in the ordinary course of business;
(f) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness non-exclusive licenses of accounts receivable IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years;
(h) Dispositions constituting a swap/exchange of assets for similar assets (although not necessarily serving the same geographical area), provided that (i) the net book value of the assets so Disposed in any transaction or series of related transactions does not exceed $50,000,000 during the 12-month period ending on the date of the last such Disposition and (ii) any cash paid (or Indebtedness assumed) by the Company or any of its Subsidiaries in connection with such swap/exchange shall reduce dollar-for-dollar the collection amount set forth in clause (j) below;
(i) the sale, lease, assignment, transfer or compromise thereofother Disposition of Receivables in connection with any Permitted Receivables Transaction; and
(hj) in addition to Dispositions by the Dispositions Company and its Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05; provided, Dispositions that the net book value of property the assets to be Disposed, together with the net book value of Xxxxxxxxx or any Subsidiaryall other assets Disposed of pursuant to this clause (j), including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do does not exceed twenty-five percent (25%) the greater of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing $500,000,000 and (ii) after giving effect 10% of Consolidated Total Assets (as reflected on the most recent audited financial statements delivered pursuant to each Section 6.01(a) prior to such date) during the 12-month period ending on the date of the last such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (hj) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Stericycle Inc), Credit Agreement (Stericycle Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:except the following (each a “Permitted Disposition”):
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, Equipment in the ordinary course of businessbusiness that is substantially worn, damaged, obsolete or, in the judgment of a Loan Party, no longer useful or necessary in its business and is not replaced with similar property having at least equivalent value;
(b) Dispositions of inventory and Inventory in the ordinary course of business;
(c) Store closings (including the termination or non-renewal of any applicable Lease or contract), bulk sales or other dispositions of the Inventory of a Loan Party conducted in orderly fashion in accordance with the applicable Store contract or otherwise and otherwise typical for the college bookseller industry (“Customary Dispositions”), provided, that any other Store closures and related Inventory dispositions that are not Customary Dispositions of equipment or real property to the extent that shall be permitted hereunder so long as such closures and dispositions shall not exceed (i) in any Fiscal Year of the Lead Borrower, ten percent (10.0%) of the number of the Loan Parties’ Store contracts as of the beginning of such property is exchanged for credit against the purchase price Fiscal Year (net of similar replacement property or new Store openings) and (ii) in the proceeds aggregate from and after the Closing Date, twenty-five percent (25.0%) of the number of such Disposition are reasonably promptly applied to Loan Parties’ Store contracts in existence as of the purchase price Closing Date (net of such replacement propertynew Store openings);
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)[intentionally omitted];
(e) Dispositions permitted by Section 7.04;
(f) Dispositions non-exclusive licenses of Cash Equivalents and Eligible Investments Intellectual Property of a Loan Party in the ordinary course of business;
(f) sales, transfers and dispositions by any Loan Party to a Borrower;
(g) sales, transfers and dispositions of any Immaterial Subsidiary to another Person;
(h) as long as no Default then exists or would arise therefrom, sales of Real Estate of any Loan Party (or sales of any Person or Persons created to hold such Real Estate or the equity interests in such Person or Persons), including sale-leaseback transactions involving any such Real Estate pursuant to leases on market terms, assignmentas long as, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course case of business any sale-leaseback transaction permitted hereunder with respect to any Material Storage Location, the Collateral Agent shall have received from such purchaser or transferee a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Collateral Agent;
(i) any Disposition of Real Estate to a Governmental Authority as a result of the condemnation of such Real Estate;
(j) Dispositions of Excluded Assets in connection accordance with the collection any intercreditor agreement or compromise thereofSecurity Documents applicable thereto;
(k) termination or non-renewal of a Lease and granting a lease, sublease, license or other occupancy interest with respect to any owned Real Estate or any real property subject to a Lease, in each case, so long as such action could not reasonably be expected to result in Material Adverse Effect; and
(hl) in addition to the as long as no Default exists or would arise therefrom and without duplication of Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (hk) of property having a book value in excess of $25,000,000 shall be for above, other Dispositions, provided, that the aggregate fair market valuevalue of all assets Disposed of in reliance upon this paragraph (l) shall not exceed $35,000,000 during any Fiscal Year of the Lead Borrower and if such Disposition gives rise to a mandatory prepayment obligation under Section 2.05(e), proceeds thereof are applied in accordance with Section 2.05(e).
Appears in 2 contracts
Samples: Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out propertysurplus property (including for purposes of recycling), whether now owned or hereafter acquired, acquired and Dispositions of property of the Borrower and the Restricted Subsidiaries that is no longer used or useful in the ordinary course conduct of businessthe business or economically practicable or commercially desirable to maintain;
(b) Dispositions of inventory and property 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; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Borrower or a Restricted Subsidiary;
(e) Dispositions permitted by Section 7.047.02 (other than Section 7.02(o)), Section 7.04 (other than Section 7.04(h)) and Section 7.06 (other than Section 7.06(d)) and Permitted Liens (other than Section 7.01(l)(i));
(f) Dispositions of Cash Equivalents property pursuant to Sale Leaseback Transactions; provided that (i) no Event of Default exists or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists) and Eligible Investments in (ii) such Disposition shall be for no less than the ordinary course fair market value of businesssuch property at the time of such Disposition;
(g) Dispositions of Cash Equivalents; provided, that such Disposition shall be for no less than the salefair market value of such property at the time of such Disposition;
(h) leases, assignmentsubleases, transferlicenses or sublicenses (including the provision of software under an open source license), which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(i) Dispositions of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(j) Dispositions; provided that:
(i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition;
(ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of 10.00% of Closing Date EBITDA (i.e., $17,460,000) and 10.00% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition, discount the Borrower or forgiveness any of the Restricted Subsidiaries shall receive not less than 75.00% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii) each of the following shall be deemed to be cash;
(A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing;
(B) any securities received by such Borrower or Restricted Subsidiary from such transferee that are converted by such Borrower or Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty days following the closing of the applicable Disposition; and
(C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of (I) 20.00% of Closing Date EBITDA (i.e., $34,920,000) and (II) 20.00% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (this clause (j), the “General Asset Sale Basket”);
(k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions or discounts of accounts receivable and related assets in connection with the collection, compromise or factoring thereof;
(m) Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;
(n) Dispositions to the extent of any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries to the extent allowable under Section 1031 of the Code (or comparable or successor provision);
(o) Dispositions in connection with the unwinding of any Hedge Agreement;
(p) Dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of a facility in the ordinary course of business of the Borrower and its Restricted Subsidiaries, which consist of fee or leasehold interests in connection with the collection or compromise thereof; and
(h) in addition premises of such facility, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the Dispositions permitted by clause (a) through clause (g) operations of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarysuch facility; provided that as to each and all such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx sales and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiariesclosings, (i) no Default or Event of Default shall have occurred and be continuing result therefrom and (ii) after giving effect such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(q) Dispositions (including bulk sales) of the inventory of a Loan Party not in the ordinary course of business in connection with facility closings, at arm’s length;
(r) Disposition of Securitization Assets to each a Securitization Subsidiary in connection with a Qualified Securitization Financing, provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(s) the lapse, Xxxxxxxxx shall abandonment or discontinuance of the use or maintenance of any Intellectual Property if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business;
(t) Disposition of any property or asset with a fair market value not to exceed with respect to any transaction the greater of (i) 10.00% of Closing Date EBITDA (i.e., $17,460,000) and (ii) 10.00% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition;
(u) Disposition of assets acquired in a Permitted Acquisition or other Investment permitted hereunder that the Borrower determines will not be used or useful in pro forma compliance with the covenants set forth in Section 7.12 business of this Agreementthe Borrower and its Subsidiaries; provided, however, that any Disposition pursuant to clauses and
(av) through (h) Dispositions of property having a book value in excess Excluded Assets by Non-Loan Parties and Dispositions of $25,000,000 shall be Excluded Assets by Loan Parties for fair market value. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, and without limiting the provisions of Section 10.11 the Administrative Agent shall be authorized to, and shall, take any actions reasonably requested by the Borrower in order to effect the foregoing (and the Lenders hereby authorize and direct the Administrative Agent to conclusively rely on any such certification by the Borrower in performing its obligations under this sentence).
Appears in 2 contracts
Samples: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Permitted Transfers;
(b) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(fe) Dispositions and/or terminations of Cash Equivalents leases, subleases, licenses or sublicenses (i) the Disposition or termination of which will not materially interfere with the business of the Company and Eligible Investments its Subsidiaries, taken as a whole, or (ii) which relate to closed facilities or the discontinuation of any line of business;
(i) any termination of any lease, sublease, license or sublicense in the ordinary course of business (and any related Disposition of improvements made to leased or sub-leased real property resulting therefrom), (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;
(g) (i) Dispositions of non-core assets (as reasonably determined by the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable Company in the ordinary course of business or good faith) acquired in connection with the collection any Acquisition or compromise thereofsimilar Investment, in each case, permitted hereunder and (ii) sales of real property and related assets acquired in any Acquisition or similar Investment, in each case, permitted hereunder; and
(h) provided, that, in addition to the Dispositions permitted by clause (a) through each case of this clause (g) of this Section 7.05immediately prior to and after giving effect to such Disposition, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing continuing;
(h) terminations or unwinds of Swap Contracts
(i) 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) after giving effect to each such Dispositiontransaction does not involve the sale or other disposition of a minority Equity Interests in any Loan Party, Xxxxxxxxx and (iii) the aggregate net book value of all of the assets sold or otherwise disposed of by the Loan Parties and their Subsidiaries in all such transactions during any fiscal year of the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.12 not exceed 20% of this AgreementConsolidated Total Assets; provided, however, that if, as of the date of any proposed Disposition pursuant to clauses this Section 7.05(i), all Dispositions made pursuant to this Section 7.05(i) (aafter giving effect to such proposed Disposition) through (h) in such fiscal year of property having a book value in excess the Borrower exceed 10% of $25,000,000 Consolidated Total Assets as of such date, the Borrower shall be for fair market valuein Pro Forma Compliance with each of the financial covenants set forth in Section 7.13 after giving effect to such proposed Disposition treating all such Dispositions pursuant to this Section 7.05(i) in such fiscal year as one Material Disposition; and
(j) Dispositions of Investments constituting minority Equity Interests of Persons that are not Subsidiaries, so long as after giving Pro Forma Effect to such Disposition at the time of such Disposition (x) the Consolidated Leverage Ratio is not greater than the applicable ratio under Section 7.13(a) and (y) no Default or Event of Default exists or would otherwise result therefrom. provided that, none of the restrictions under this Section 7.05 shall apply to the Morningstar Seed Portfolios or any margin stock held by the Borrower or any of its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Morningstar, Inc.), Credit Agreement (Morningstar, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit Neither Holdings nor any of its the Restricted Subsidiaries toshall, directly or indirectly, make any Disposition or enter into any agreement to make any DispositionDisposition (other than as part of or in connection with the Transaction), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower or any of its Restricted Subsidiaries;
(b) Dispositions of inventory inventory, goods held for sale in the ordinary course of business and immaterial assets (including allowing any issuances, registrations or any applications for registration of any intellectual property to lapse or become abandoned in the ordinary course of business) 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 Xxxxxxxxx to Holdings or any Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party, (i) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting if such transaction constitutes an Investment Investment, such transaction is permitted by under Section 7.03(h)7.02;
(e) Dispositions to the extent constituting Dispositions, transactions permitted by Sections 7.01, 7.02 (other than Section 7.047.02(e)), 7.04 (other than Section 7.04(f)) and 7.06;
(f) Dispositions of cash and Cash Equivalents Equivalents;
(g) leases, subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights) and Eligible Investments termination 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;
(h) transfers of property subject to Casualty Events;
(i) Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(gj) Dispositions of property pursuant to sale-leaseback transactions; provided that the fair market value of all property so Disposed of after the Closing Date shall not exceed $20,000,000;
(k) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(l) so long as Holdings or a Restricted Subsidiary receives at least Fair Market Value therefor (taking into account any Securitization Seller’s Retained Interest), any sale of Securitization Assets in connection with a Permitted Securitization;
(m) Dispositions which may not be prohibited pursuant to section 1136 of the German Civil Code;
(n) Dispositions of property not otherwise permitted under this Section 7.05 in an aggregate amount during the term of this Agreement not to exceed 10% of Total Assets at the time any Disposition is made pursuant to this clause (n); provided that (i) at the time of such Disposition no Default shall exist or would result from such Disposition (other than, except in the case of an Event of Default under Section 8.01(a), any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), (ii) with respect to any Disposition pursuant to this clause (n) for a purchase price in excess of $5,000,000, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens; provided, however, that for the purposes of this clause (n)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on Holdings most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, and (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, (iii) each such sale is an arm’s-length transaction and the Borrower or the respective Restricted Subsidiary receives at least fair market value and (iv) the sale, assignment, transfer, Disposition, discount Net Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.05(b)(ii);
(o) any swap of assets in exchange for services or forgiveness of accounts receivable other assets in the ordinary course of business of comparable or greater value or usefulness to the business of Holdings and its Subsidiaries as a whole, as determined in connection good faith by the management of the Borrower;
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements and (ii) Dispositions consisting of Investments in joint ventures pursuant to Section 7.02(u); provided that the Net Proceeds therefrom are applied or reinvested as (and to the extent) required by Section 2.05(b)(iii);
(q) Holdings and the Restricted Subsidiaries may enter into any agreement to make any Disposition so long as consummation of the Disposition contemplated by such agreement is contingent upon either (i) the Required Lenders consenting to such transactions or (ii) the repayment in full of the Obligations (other than (i) obligations arising under Secured Hedge Agreements or Treasury Services Agreements and (ii) indemnities and other contingent liabilities that survive repayment of the Loans);
(r) the unwinding of any Swap Contracts pursuant to its terms;
(s) the dissolution or liquidation of any Subsidiary with the collection or compromise thereofno assets; and
(ht) sales of non-core assets acquired in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx connection with Permitted Acquisitions or any Subsidiary, including Equity Interests of any Subsidiaryother Investments; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default the aggregate amount of such sales shall not exceed 25% of the fair market value of the acquired entity or Event of Default shall have occurred and be continuing business and (ii) after giving effect the Net Proceeds therefrom are applied or reinvested as (and to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in extent) required by Section 7.12 of this Agreement; provided, however, 2.05(b)(iii). provided that any Disposition of any property pursuant to clauses Section 7.05(j) or (an) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Styron Canada ULC), Credit Agreement (Trinseo S.A.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings and its Restricted Subsidiaries;
(b) Dispositions of inventory and other assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial intellectual property to lapse or go abandoned 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 that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary Restricted Subsidiary, other than Dispositions by a Borrower of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)any Accounts arising under any Specified Contract;
(e) Dispositions in the form of Investments permitted by Section 7.02 (other than solely from Section 7.02(f)), in the form of mergers and other transactions permitted by Section 7.04, in the form of Restricted Payments permitted by Section 7.06 (if not a disposition of Accounts arising under any Specified Contract) and in the form of Liens permitted by Section 7.01;
(f) subject to compliance with Section 6.17, Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the saleleases, assignmentsubleases, transferlicenses or sublicenses, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business and which do not materially interfere with the business of Holdings and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events upon receipt of the net cash proceeds of such Casualty Event;
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(j) Dispositions of accounts receivable (other than Dispositions by a Borrower of Accounts arising under any Specified Contract) in the ordinary course of business in connection with the collection or compromise thereof; and;
(hk) in addition the unwinding of any Swap Contract pursuant to the its terms;
(l) Permitted Sale Leasebacks;
(m) Dispositions not otherwise permitted by clause (a) through clause (g) of pursuant to this Section 7.05, Dispositions 7.05 (other than any Disposition by a Borrower of property of Xxxxxxxxx or Accounts arising under any Subsidiary, including Equity Interests of any SubsidiarySpecified Contract; provided that this parenthetical shall not exclude any such Dispositions consummated during Disposition that constitutes all Accounts arising under one or more Specified Contracts if (x) the term Borrowers shall deliver an updated Borrowing Base Certificate giving Pro Forma Effect to such Disposition and (y) after giving Pro Forma Effect to such Disposition and the use of proceeds thereof, (I) the German Revolving Credit Exposure of all Revolving Credit Lenders does not exceed the German Borrowing Base, (II) the Maltese Revolving Credit Exposure of all Revolving Credit Lenders does not exceed the Maltese Borrowing Base and (III) the Aggregate Revolving Credit Exposure of all Revolving Credit Lenders does not exceed the Maximum Credit), if such Disposition shall be for Fair Market Value; provided that (i) with respect to any Disposition pursuant to this Agreement clause (m) for a purchase price in excess of the greater of (x) $5,000,000 and (y) 2.0% of Consolidated Total Assets as of the end of the Test Period most recently ended on or prior to the date such Disposition is made based upon the Section 6.01 Financials most recently delivered on or prior to such date, Holdings or a Restricted Subsidiary shall receive not less than 75% of such consideration in the aggregate do not exceed twenty-five percent form of cash or Cash Equivalents; provided, further, that, for purposes of determining what constitutes cash and Cash Equivalents under this clause (25%i), (A) any liabilities (as shown on Holdings’ or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the total assets payment of Xxxxxxxxx the Obligations, that are assumed by the transferee with respect to the applicable Disposition and its Subsidiaries; provided further for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the property subject cash received) within 180 days following the closing of the applicable Disposition shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of the applicable Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $15,000,000 and (y) 6.0% of Consolidated Total Assets (measured as of the date such Disposition is made based upon the Section 6.01 Financials most recently delivered on or prior to such date) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (ii) before and after giving effect to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect other than with respect to each a Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default existed or would have resulted from such Disposition);
(n) [reserved];
(o) Dispositions listed on Schedule 7.05; and
(p) the Disposition of the Equity Interests in, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; providedIndebtedness of, howeveror other securities issued by, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valuean Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of surplus, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx any Restricted Subsidiary to the Company or any Subsidiary of Xxxxxxxxx to a wholly-owned Restricted Subsidiary; provided that (i) to Xxxxxxxxx or to if the transferor of such property is a Wholly–Owned Subsidiary of Xxxxxxxxx or Loan Party, the transferee thereof must be a Loan Party and (ii) to if the transferor of such property is a joint venture or to Loan Party other than a non Wholly-Owned Subsidiary of Xxxxxxxxx to Foreign Obligor, the extent constituting an Investment permitted by Section 7.03(h)transferee thereof must be a Loan Party other than a Foreign Obligor;
(e) Dispositions permitted by Section 7.047.04 and Permitted Liens;
(f) Dispositions of Cash Equivalents by the Company and Eligible Investments its Restricted Subsidiaries required to comply with relevant antitrust Laws in connection with the Acquisition or any Permitted Acquisition;
(g) leases, subleases, licenses or sublicenses granted in the ordinary course of business, which could not reasonably be expected to have a Material Adverse Effect;
(gh) the sale, assignment, transfer, Disposition, discount sale or forgiveness other transfer of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05securitization thereof and/or factoring arrangements, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twentywhich sale is non-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the property subject to any such Disposition represents more than five percent (5%) extent constituting Indebtedness of the total assets of Xxxxxxxxx and its SubsidiariesCompany or any Restricted Subsidiary, within the limits set forth in Section 7.02(f);
(i) so long as no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect continuing, or would result therefrom, other Dispositions in an aggregate amount not to each such Disposition, Xxxxxxxxx shall be exceed $200,000,000 in pro forma compliance with the covenants set forth in Section 7.12 of this Agreementany fiscal year; provided, however, provided that any Disposition pursuant to clauses (a) through (h) of property having a book value unused amount may be carried over for use in excess of $25,000,000 shall be for fair market value.the next following fiscal year;
Appears in 2 contracts
Samples: Credit Agreement (Aecom), Credit Agreement (Aecom Technology Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyproperty and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and or Cash Equivalents 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 Xxxxxxxxx or any Restricted Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to Guarantor, the transferee thereof must be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Restricted Payments permitted by Section 7.06 and Liens permitted by Section 7.01;
(g) Dispositions of Cash Equivalents and Eligible Investments accounts receivables in connection with the collection or compromise thereof in the ordinary course of business;
(gh) grants of Leases, subleases, licenses or sublicenses (including the saleprovision of software under an open source license), assignmenteasements, transfer, Disposition, discount rights of way or forgiveness of accounts receivable similar rights or encumbrances in each case in the ordinary course of business or in connection and which do not materially interfere with the collection business of the Borrower and its Restricted Subsidiaries;
(i) transfers of property that has suffered a casualty (constituting a total loss or compromise thereofconstructive total loss of such property) upon receipt of the Insurance Proceeds of such casualty;
(j) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, and (ii) the aggregate book value of all property Disposed of in reliance on this clause (k) in any fiscal year shall not exceed $5,000,000 on the first day of the fiscal year most recently ended at the time of such determination;
(l) Dispositions by the Borrower and its Restricted Subsidiaries of property pursuant to sale-leaseback transactions, provided that the fair market value of all property so Disposed of shall not exceed $7,500,000 during any fiscal year; and
(hm) in addition to Dispositions by the Dispositions Borrower and its Restricted Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) at the time of such Disposition, no Default shall exist or Event of Default shall have occurred and be continuing and would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance of this clause (m) in any fiscal year (A) ending prior to the IPO Closing Date, shall not exceed $5,000,000, and (B) ending on or after giving effect to each the IPO Closing Date, shall not exceed $10,000,000, and (iii) at least 75% of the purchase price for such Disposition, Xxxxxxxxx asset shall be paid to the Borrower or such Restricted Subsidiary solely in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; cash, provided, however, that any Disposition pursuant to clauses (aSection 7.05(a) through (hSection 7.05(m) of property having a book value in excess of $25,000,000 shall be for fair market value, and provided further, however, the Borrower shall make the prepayment or reinvestment of proceeds of any Disposition under Section 7.05(i) through (m) pursuant to Section 2.05. Notwithstanding anything to the contrary herein, the Borrower may sell, grant or otherwise issue Equity Interests to members of management of the Borrower or any Subsidiary pursuant to stock option, stock ownership, stock incentive or similar plans.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (JP Energy Partners LP)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Parent and its Subsidiaries, in each case to the extent constituting immaterial property;
(b) Dispositions in the ordinary course of business of Cash Equivalents;
(c) sales of inventory and in the ordinary course of business;
(cd) Dispositions (other than of equipment material Intellectual Property or real property of assets relating to the extent metreleptin) for fair market value; provided that (i) such property is exchanged for credit against the purchase price amount of similar replacement property Dispositions does not exceed $250,000 individually or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments $2,500,000 in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the aggregate for all Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesAgreement, (iii) immediately prior to and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iii) no less than one hundred percent (100%) of the consideration received for any such Disposition is received in cash;
(e) the leasing, as lessor, of real or personal property not presently used or useful in such Person’s business and is otherwise in the ordinary course of business;
(f) Dispositions of equipment or other assets, to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment or assets or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement equipment, all in the ordinary course of business;
(g) Dispositions constituting an Intellectual Property that is not material to the conduct of the business of the Loan Parties and their Subsidiaries;
(h) Dispositions otherwise permitted by Sections 7.01, 7.02 or 7.03 and Dispositions from any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(i) Dispositions consisting of a Permitted AP License; and
(j) Dispositions consisting of licenses of AP 102 assets. provided that the proceeds of any Dispositions permitted hereunder shall be applied in accordance with the requirements of Section 2.02(b)(i) to the extent required under such section; provided further that, in the case of Dispositions under Section 7.05(i), the Borrower shall provide prior written notice to the Administrative Agent and the Lenders of any such Disposition and, so long as no Default or Event of Default has occurred and is continuing, the Borrower may (x) reinvest up to (i) 50% of the proceeds of any Permitted AP License generating proceeds in an amount less than $30,000,000 and (ii) after giving effect 75% of the proceeds of any Permitted AP License generating proceeds in an amount equal to or greater than $30,000,000, in each case with such Disposition, Xxxxxxxxx shall be reinvestment occurring within 12 months of receipt of such proceeds or (y) commit to using such 50% or 75% (as applicable) portion of the proceeds in pro forma compliance with a clinical development program approved by the covenants set forth in Section 7.12 Parent’s board of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valuedirectors.
Appears in 2 contracts
Samples: Credit Agreement (Amryt Pharma PLC), Credit Agreement (Amryt Pharma PLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, inventory in the ordinary course of business;
(b) Dispositions the issuance and sale by the Borrower of inventory Equity Interests (other than Disqualified Equity Interests) of the Borrower on and after the Closing Date;
(c) leases of real or personal property in the ordinary course of business;
(c) Dispositions of equipment or real property to business in accordance with past practice and in accordance with 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 propertyLoan Documents;
(d) provided that no Default or Event of Default exists immediately prior to or after such Disposition, other Dispositions not to exceed $20,000,000 in any twelve-month period; provided that at least 80% of property by Xxxxxxxxx or the consideration received in any Subsidiary such Disposition is in the form of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)cash and Cash Equivalents;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions involving property or assets acquired in any acquisition by the Borrower or any of Cash Equivalents and Eligible Investments its Subsidiaries if such disposition is required by any Governmental Authority having jurisdiction over antitrust, competition or similar matters in the ordinary course of businessconnection with such acquisition;
(g) the sale, assignment, transfer, provided that no Default or Event of Default exists immediately prior to or after such Disposition, discount Dispositions of any Non-Accounts Collateral or forgiveness assets not constituting Collateral by the Borrower or any of accounts receivable its Subsidiaries so long as:
(i) the Borrower or the applicable Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Borrower’s senior management or, in the case of a Disposition in excess of $25,000,000, the Borrower’s board of directors);
(ii) at least 75% of the consideration received by the Borrower or the Subsidiary, as the case may be, from such Disposition shall be in the form of:
(A) cash or Cash Equivalents,
(B) properties and assets to be owned by the Borrower or any of its Subsidiaries and used in a Permitted Business; or
(C) Equity Interests in one or more Persons engaged in a Permitted Business that are or thereby become Subsidiaries of the Borrower;
(iii) upon the consummation of such Disposition, the Borrower will apply, or cause such Subsidiary to apply, the Net Cash Proceeds relating to such Disposition within 365 days of receipt thereof to make an Investment (i) in properties and assets that replace the properties and assets that were the subject of such Disposition or (ii) in properties and assets that will be used by the Borrower or a Subsidiary in a Permitted Business (clauses (i) and (ii) collectively referred to as “Replacement Assets”); and
(iv) the Net Cash Proceeds from any such Disposition of Non-Accounts Collateral is paid as provided for in accordance with the Senior High Yield Documents and the Intercreditor Agreement, to the extent applicable;
(h) Dispositions of equipment in connection with the reinvestment in or the replacement thereof and disposals of worn-out or obsolete equipment;
(i) the grant in the ordinary course of business or in connection with the collection or compromise thereof; andof non-exclusive licenses to use any patents, trademarks and similar intellectual property;
(hj) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) exists immediately prior to or after giving effect to each such Disposition, Xxxxxxxxx shall be the release, surrender or waiver of contract, tort or other claims of any kind in pro forma compliance with the covenants set forth in ordinary course of business as a result of settlement of any litigation or threatened litigation;
(k) the granting or existence of Liens permitted under Section 7.12 7.01; and
(l) the making of this Agreementany Investment permitted under Section 7.05 or any Restricted Payment permitted under Section 7.06; provided, however, that any Disposition pursuant to clauses (aSection 7.05(a) through (hSection 7.05(l) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of business (including Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, surplus property no longer required or useful in the business or operations of the Borrower or any of its Subsidiaries);
(b) Dispositions of assets and businesses specified on Schedule 6.08 or expected to be sold or terminated under the Business Plan most recently delivered to the Facility Agent prior to the Signing Date;
(c) Dispositions of Investments in Cash Equivalents;
(d) Dispositions of assets which individually or in the aggregate are less than 15% of the Consolidated Tangible Net Assets as of the Effective Date and for which no less than 80% of the proceeds received therefor are in cash or Cash Equivalents;
(e) Dispositions constituting a Lien permitted pursuant to Section 7.01;
(f) the sale or issuance of any Operating Company Subsidiary’s Equity Interests to the Borrower;
(g) Dispositions of assets in connection with any transaction permitted by Section 7.05;
(h) assignments and licenses of intellectual property or other intangibles of the Operating Company Group Members in the ordinary course of business;
(bi) Dispositions any Disposition of inventory and any asset or interest therein in the ordinary course of business;
(c) Dispositions of exchange for utility plant, equipment or real property other utility assets (other than notes or other obligations) in each case equal to the extent that fair market value (ias determined in good faith by the Borrower) 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 Xxxxxxxxx asset or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreementinterest therein; provided, however, that the fair market value of any such assets or interests Disposed of under this paragraph (i) shall not exceed $5,000,000 in the aggregate in any fiscal year; and
(j) other Dispositions, in one transaction or a series of related transactions, resulting in Net Cash Proceeds not exceeding $10,000,000 in the aggregate in any fiscal year; provided that any Disposition of any property pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 this Section 7.02 shall be for no less than the fair market valuevalue of such property at the time of execution of the relevant agreement with respect to such Disposition and taxes due with respect to such Dispositions shall be substantially contemporaneously paid (or reserved for future payment) out of the proceeds from such Disposition.
Appears in 2 contracts
Samples: Credit Agreement (Puget Energy Inc /Wa), Credit Agreement (Puget Energy Inc /Wa)
Dispositions. Xxxxxxxxx will notNo Loan Party will, and will not cause or permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of 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 (other than Equity Interests of Subsidiaries, lines of business, real property or intellectual property);
(c) Dispositions of equipment or assets (other than Equity Interests of Subsidiaries, lines of business, real property or intellectual property) to the extent that (i) such property is assets are exchanged for credit against the purchase price of similar replacement property other assets comparable or (ii) the proceeds of such Disposition are reasonably promptly applied superior as to the purchase price of such replacement propertytype, value and quality;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non any Wholly-Owned Subsidiary of Xxxxxxxxx (which is not itself a Loan Party) to the extent constituting an Investment permitted by Section 7.03(h)a Loan Party or to another Wholly-Owned Subsidiary, (ii) any Subsidiary (which is not itself a Loan Party or a Wholly-Owned Subsidiary) to a Loan Party or to another Subsidiary or (iii) a Loan Party to another Loan Party or a Wholly-Owned Subsidiary;
(e) Dispositions permitted by Section 7.04of property as a result of a casualty event involving such property or any Disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(f) Dispositions of Cash Equivalents assets (other than cash) to an Acquisition SPV;
(g) Dispositions permitted by SECTION 7.03;
(h) Dispositions of intellectual property rights that are no longer used or useful in the business of a Loan Party and Eligible its Subsidiaries;
(i) Restricted Payments permitted by SECTION 7.05 and Investments not otherwise prohibited by this Agreement;
(j) Dispositions of all or part of any Investments acquired after the date of this Agreement provided that such disposal is completed within 180 days of that acquisition;
(k) Dispositions of assets by a Loan Party and its Subsidiaries, including Insurance Subsidiaries, in connection with an Insurance Agreement, Policy, Retrocession Agreement, Novation Agreement, Commutation Agreement, Fronting Arrangement or Reinsurance Agreement or any related agreement, in each case in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Enstar Group LTD), Revolving Credit Agreement
Dispositions. Xxxxxxxxx will notNo Borrower and no other Loan Party and no Subsidiary of a Borrower or of another Loan Party (excluding, and will not cause or permit in each case, any of its Subsidiaries to, Designated Real Estate Subsidiary) shall make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;,
(b) Dispositions of inventory and 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 similar replacement property;,
(c) the sale of residual ownership rights in vehicles and equipment upon the termination of operating leases,
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of not otherwise prohibited under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary6.05; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have has occurred and be is continuing at the time of such Disposition, (ii) no Default, Event of Default or Material Adverse Change would result from such Disposition, and (iii) the aggregate book value of all property disposed of in reliance of this subsection in any Fiscal Year shall not exceed Five Hundred Thousand Dollars ($500,000.00); and
(e) Sale and Leaseback Transactions; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Sale and Leaseback Transaction and (ii) after giving effect to each no Default, Event of Default or Material Adverse Change would result from such DispositionSale and Leaseback Transaction. Notwithstanding the foregoing, Xxxxxxxxx in no event shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Loan Party make any Disposition pursuant which results in or facilitates in any manner any Material Intellectual Property owned by such Loan Party being transferred by such Loan Party to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueany non-Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (Lazydays Holdings, Inc.), Credit Agreement (Lazydays Holdings, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) (i) Dispositions by New Holdings and its Restricted Subsidiaries of obsolete or (A) obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of business, and (B) property no longer used or useful in the conduct of the business of New Holdings and its Restricted Subsidiaries and (ii) the abandonment or other Disposition of intellectual property by New Holdings and its Restricted Subsidiaries in the ordinary course of business or which are reasonably determined by New Holdings, in good faith, to be no longer material to its business;
(b) Dispositions by New Holdings and its Subsidiaries of inventory and in the ordinary course of business;
(c) Dispositions by New Holdings and its Restricted Subsidiaries of equipment or real 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 reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions by the Restricted Subsidiaries of property by Xxxxxxxxx to New Holdings or any Subsidiary a Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting such transaction constitutes an Investment Investment, such transaction is permitted by under Section 7.03(h7.03 (other than Section 7.03f));
(e) Dispositions permitted by Section 7.047.03 (other than Section 7.03(f)), Section 7.04 (other than Section 7.04(f)) and Section 7.09 and Liens permitted by Section 7.01 (other than Section 7.01(l));
(f) Dispositions of Cash Equivalents by New Holdings and Eligible Investments its Restricted Subsidiaries in the ordinary course of businessbusiness of Cash Equivalents;
(g) leases, subleases, licenses or sublicenses of New Holdings and its Restricted Subsidiaries, in each case in the saleordinary course of business and which do not materially interfere with the business of New Holdings and its Restricted Subsidiaries, assignmenttaken as a whole;
(h) transfers of property of New Holdings and its Restricted Subsidiaries subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(i) Dispositions of Investments in joint ventures by New Holdings and its Restricted Subsidiaries to the extent required by, transferor made pursuant to customary buy/sell arrangements between, Disposition, discount or forgiveness the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(j) Dispositions by New Holdings and its Restricted Subsidiaries of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and;
(hk) in addition the unwinding of any Swap Contract of New Holdings and its Restricted Subsidiaries pursuant to its terms;
(l) so long as immediately before and immediately after giving Pro Forma Effect to any such transaction no Default shall have occurred and be continuing, Permitted Sale Leasebacks;
(m) Dispositions by New Holdings and its Restricted Subsidiaries of a broadcasting asset or 100% of the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarya Restricted Subsidiary owning a broadcasting asset; provided that such Dispositions Disposition is made together with a concurrent sale and purchase of, or exchange for, a broadcasting asset (or 100% of the Equity Interests of a Restricted Subsidiary owning a broadcasting asset) of another Person (an “Asset Swap”), in each case so long as (i) immediately before and immediately after giving Pro Forma Effect to any such Disposition, no Default shall have occurred and be continuing, (ii) the aggregate net reduction in EBITDA Percentage attributable to such assets Disposed of in connection with such Asset Swap, together with the reductions in EBITDA Percentage attributable to all other assets disposed of by New Holdings and its Restricted Subsidiaries in connection with Asset Swaps consummated during the term of this Agreement in the aggregate do Agreement, shall not exceed twenty15%, (iii) all FCC Licenses acquired in connection with any such Asset Swap will be acquired by New Holdings or a domestic Wholly-five percent Owned Restricted Subsidiary of New Holdings which is a Guarantor and the Equity Interests of which are pledged to secure the Obligations, (25%iv) of after giving effect to such Asset Swap, New Holdings shall be in compliance with Sections 6.11 and 6.14 (within the total assets of Xxxxxxxxx and its Subsidiaries; provided further that time period specified therein) to the extent applicable, and Section 7.11, and (vi) if the property subject asset value of such Asset Swap exceeds $50,000,000, New Holdings shall provide the Administrative Agent prior to the consummation of such Asset Swap (or thereafter to the extent acceptable to the Administrative Agent) with a certificate of a Responsible Officer of New Holdings certifying as to the requirements of clause (i) and (ii) above, together with such additional financial information as shall be reasonably requested by the Administrative Agent;
(n) Dispositions by New Holdings and its Restricted Subsidiaries not otherwise permitted pursuant to this Section 7.05; provided that (i) immediately before and immediately after giving Pro Forma Effect to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default or Event of Default shall have occurred and be continuing and continuing, (ii) after giving effect to each such Disposition, Xxxxxxxxx Disposition shall be for fair market value as reasonably determined by New Holdings or the applicable Restricted Subsidiary in pro forma compliance good faith based on sales of similar assets, if available, (iii) New Holdings or the applicable Restricted Subsidiary complies with the covenants set forth in applicable provisions of Section 7.12 2.05, (iv) the EBITDA Percentage attributable to all assets sold or exchanged by New Holdings and its Restricted Subsidiaries during the term of this AgreementAgreement shall not exceed 35% and shall not exceed 20% in any twelve-month period; and (v) with respect to any Disposition pursuant to this clause (n) for a purchase price in excess of $10,000,000, New Holdings or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (v), (A) any Disposition pursuant to clauses liabilities (a) through (has shown on the most recent balance sheet of New Holdings provided hereunder or in the footnotes thereto) of property having a book value New Holdings and its Restricted Subsidiaries, other than liabilities that are by their terms subordinated in excess right of $25,000,000 payment to the Obligations under the Loan Documents, that are assumed by the transferee with respect to the applicable Disposition and for which New Holdings and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be for fair market valuedeemed to be cash, and (B) any securities received by New Holdings and its Restricted Subsidiaries from such transferee that are converted by New Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash; and
(o) any forgiveness, write-off 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. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than New Holdings, any Borrower or any Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower Representative that such Disposition is expressly permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Incremental Facility Amendment (Media General Inc), Credit Agreement (Media General Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete inventory or obsolete, damaged, worn out property, whether now owned or hereafter acquired, surplus property in the ordinary course of business;
(b) Dispositions by the Borrower or any Subsidiary to the Borrower or any Subsidiary Loan Party (including any Disposition effected pursuant to a merger, consolidation, liquidation or dissolution permitted under Section 7.04);
(c) Dispositions to the extent constituting a Restricted Payment permitted by Section 7.06;
(d) Dispositions of inventory overdue accounts receivable arising in the ordinary course of business, but only in connection with the collection or compromise thereof;
(e) Dispositions of Cash and Cash Equivalents in the ordinary course of business;
(cf) Dispositions of equipment or real property to the extent not otherwise permitted in clauses (a) through (e) above, provided, that (i) at the time of such property is exchanged for credit against the purchase price of similar replacement property Disposition no Default exists or would result from such Disposition and (ii) the proceeds aggregate Book Value of such Disposition are reasonably promptly applied to the purchase price all property disposed of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
in reliance on this clause (f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of businessany Fiscal Year shall not exceed $150,000;
(g) so long as there exists no Default immediately before and after giving effect to any such transaction, Dispositions not otherwise permitted in clauses (a) through (f) above, the sale, assignment, transfer, Disposition, discount or forgiveness Net Cash Proceeds of accounts receivable which are used within 120 days of such Disposition to purchase assets useful in the ordinary course business of the Borrower and its Subsidiaries, provided that (i) the aggregate amount of Net Cash Proceeds outstanding and pending reinvestment pursuant to this clause (g) shall not exceed $50,000 and (ii) if such Net Cash Proceeds are not used within such 120 days to purchase assets useful in the business or of the Borrower and its Subsidiaries, then such Net Cash Proceeds shall be applied in connection accordance with Section 2.05(d) of the collection or compromise thereofExisting Credit Agreement; and
(h) in addition Disposition by the Borrower of assets and Equity Interests as disclosed to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement Administrative Agent in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that writing prior to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this AgreementClosing Date; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value. Notwithstanding anything to the contrary herein, in no event should there be any Disposition of the Mortgaged Property without the consent of each Lender.
Appears in 2 contracts
Samples: Term Credit Agreement (Powersecure International, Inc.), Term Credit Agreement (Powersecure International, Inc.)
Dispositions. Xxxxxxxxx will notSubject to the provisions of the Intercreditor Agreement (if it is in full force and effect), and will not cause within three (3) Business Days of the date of receipt by any Credit Party or permit any of its Subsidiaries to, make of the Net Proceeds in excess of $5,000,000 from any voluntary or involuntary Disposition by any Credit Party or enter into any agreement to make any Disposition, except:
of its Subsidiaries of assets (excluding Dispositions which qualify as Permitted Dispositions under clauses (a) Dispositions of obsolete or worn out property), whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and in the ordinary course of business;
), (c) Dispositions of equipment or real property to the extent that ), (d), (e), (f), (i), (j) such property is exchanged for credit against and (l) of the purchase price definition of similar replacement property “Permitted Dispositions”, but including casualty losses or (ii) condemnations in respect thereof), the proceeds Borrower shall prepay the outstanding principal amount of the Loans in an amount equal to 100% of such Disposition are reasonably promptly applied to the purchase price of Net Proceeds (including condemnation awards and payments in lieu thereof) received by such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or Person in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarysuch Dispositions; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent that, so long as (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (iA) no Default or Event of Default shall have occurred and be is continuing or would result therefrom, (B) the Borrower shall have given the Administrative Agent prior written notice of the Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such Disposition or the cost of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries, (C) pending application thereof, in the case of Net Proceeds resulting from the Disposition of Term Priority Collateral, the monies are held in a Term Priority Collateral Account in which the Administrative Agent has a perfected first-priority security interest (subject to Permitted Liens), and (iiD) the Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction, or enter into a binding commitment with respect to such replacement, purchase or construction, in each case within 365 days after giving effect the initial receipt of such monies, then the Borrower shall have the option to each apply such Dispositionmonies to the costs of replacement of the assets that are the subject of such sale or disposition, Xxxxxxxxx unless and to the extent that such 365-day period shall have expired without such replacement, purchase, or construction being made or completed (or, in the case of replacements, purchases or construction to which the Borrower and Subsidiaries have committed within such 365-day period, to the extent that such replacement, purchase or constriction shall not have been made or completed within 180 days from the end of such 365-day period), in which case, any Net Proceeds not so applied shall be in pro forma compliance with paid to the covenants set forth in Section 7.12 Administrative Agent and applied to the prepayment of this Agreementthe Loans; provided, however, that, if at the time that any Disposition such prepayment would be required, any Credit Party is required to offer to repurchase or to prepay any Other Pari Passu Lien Obligations (or any Permitted Refinancing Indebtedness in respect thereof that is secured by the Collateral on a pari passu basis with the Obligations) pursuant to clauses the terms of the documentation governing such Indebtedness with such Net Proceeds (asuch Other Pari Passu Lien Obligations (or any Permitted Refinancing Indebtedness in respect thereof) through required to be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Proceeds on a pro rata basis (h) determined on the basis of property having the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness outstanding at such time (and in the case of such Other Applicable Indebtedness, at a book value in excess prepayment price of $25,000,000 no more than 100% of principal amount); provided that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be for fair market valueallocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 5.2(a) shall be reduced by the amount of such Other Applicable Indebtedness so repaid with such Net Proceeds and to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof. Nothing contained in this Section 5.2(a) shall permit any Credit Party or any of its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section 10.4.
Appears in 2 contracts
Samples: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Dispositions. Xxxxxxxxx The Borrower will not, and will not cause or permit any of its Restricted Subsidiaries to, make Dispose of any Disposition or enter into any agreement to make any Disposition, of its assets except:
(a) Dispositions the sale or lease of obsolete or worn out property(i) inventory, whether now owned or hereafter acquired, (ii) goods held for sale in the ordinary course of business and (iii) termination of leases and licenses in the ordinary course of business;
(b) Dispositions of inventory and 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;
(c) the use or transfer of money, cash or Cash Equivalents in a manner that is not prohibited by the terms of this Credit Agreement or the other Loan Documents;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or Dispositions among the Loan Parties, (ii) Dispositions among Restricted Subsidiaries that are not Loan Parties, and (iii) Dispositions from a Loan Party to a joint venture or to Non-Loan Party Subsidiary that do not involve assets having an aggregate Fair Market Value for all such assets so Disposed in excess of (x) the greater of (a) $10,000,000 and (b) 10.0% of Consolidated EBITDA for the most recently ended Measurement Period (calculated on a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(hPro Forma Basis), in any Fiscal Year;
(e) Dispositions permitted by Section 7.04pursuant to Transfer Pricing Arrangements;
(f) the granting of Permitted Liens and the other transactions permitted by Section 7.2;
(i) the abandonment, cancellation or lapse of issued patents, registered trademarks and other registered intellectual property of a Loan Party or Restricted Subsidiary thereof to the extent, in such Loan Party’s reasonable business judgment, not economically desirable in the conduct of such Loan Party’s business or so long as such lapse is not materially adverse to the interests of the Lenders and (ii) the expiration of patents in accordance with their statutory terms;
(i) leases, subleases, licenses or sublicenses (including the provision of software, including under an open source license or the licensing of other intellectual property rights) and terminations thereof, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) and (ii) Dispositions of Intellectual Property (including inbound or outbound licenses) that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) (in each case other than to an Unrestricted Subsidiary);
(i) the sale of assets (other than Equity Interests of any Wholly-Owned Subsidiary, unless all of the Equity Interests of such Wholly-Owned Subsidiary (other than the Borrower) are sold in accordance with this clause (i) to a Person that is not an Affiliate of a Loan Party) for at least Fair Market Value, so long as (A) no Default then exists or would immediately result therefrom and (B) with respect to a Disposition for a purchase price in excess of $10,000,000, at least 75% of the consideration received by the applicable Loan Party consists of cash or Cash Equivalents or converts to cash within 180 days of such sale; provided that, for purposes of this clause (B), Designated Non-Cash Consideration received in respect of such asset sale, taken together with all other Designated Non-Cash Consideration received in respect of asset sales pursuant to this clause (i) that do not exceed $10,000,000 in the aggregate at any time outstanding shall be deemed to be cash (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower at the time received and Eligible Investments without giving effect to subsequent changes in value);
(A) any termination of any lease in the ordinary course of business, (B) any expiration of any option agreement in respect of real or personal property, (C) any surrender or waiver of contractual rights or (D) the settlement, release, reorganization or surrender of contract, tort or other claim in the ordinary course of business;
(gk) the saleDispositions of obsolete, assignmentworn out, transferused or surplus property, Dispositionwhether now owned or hereafter acquired, discount or forgiveness of accounts receivable in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of Holdings, the Borrower or any of its Restricted Subsidiaries;
(l) Dispositions of non-core assets acquired in connection with any Acquired Entity or Business; provided that (i) the collection aggregate amount of such sales shall not exceed 15% of the Fair Market Value of the Acquired Entity or compromise Business and (ii) each such sale is in an arm’s-length transaction and the Borrower or the respective Restricted Subsidiary receives at least Fair Market Value;
(m) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) 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;
(o) to the extent constituting Dispositions, transactions permitted by (i) Section 7.2, (ii) Section 7.3 (other than clause (a)(iv) thereof) and (iii) Section 7.4; and
(hp) in addition the unwinding or terminating of hedging arrangements or transactions contemplated by any Swap Agreement. Notwithstanding anything to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05contrary herein, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twentyamount of Dispositions from Loan Parties to Non-five percent (25%Loan Party Subsidiaries permitted pursuant to Sections 7.5(d) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event in any Fiscal Year, together with the aggregate amount of Default shall have occurred and be continuing outstanding Investments permitted pursuant to Sections 7.4(d), (e), (k), (l), (m) and (iicc) after giving effect to each such Dispositionin Non-Loan Party Subsidiaries, Xxxxxxxxx shall be in pro forma compliance with not exceed the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueNon-Guarantor Investment Cap.
Appears in 2 contracts
Samples: Credit Agreement (TechTarget Holdings Inc.), Credit Agreement (TechTarget, Inc.)
Dispositions. Xxxxxxxxx No Account Party will, nor will not, and will not cause or it permit any of its Significant Subsidiaries to, make sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily (any Disposition of the foregoing being referred to in this Section as a “Disposition” and any series of related Dispositions constituting but a single Disposition), any of its properties or enter into any agreement assets, tangible or intangible (including but not limited to make any Dispositionsale, assignment, discount or other disposition of accounts, contract rights, chattel paper or general intangibles with or without recourse), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness involving current assets or other invested assets classified on such Account Party’s or its respective Subsidiaries’ balance sheet as available for sale or as a trading account;
(b) Dispositions of inventory and sales, conveyances, assignments or other transfers or dispositions in immediate exchange for cash or tangible assets, provided that any such sales, conveyances or transfers shall not individually, or in the ordinary course aggregate for the Account Parties and their respective Subsidiaries (taken together with any other Dispositions previously made pursuant to this Section 7.02(b)), exceed 10% of businessConsolidated Total Assets at the time of the making of such Disposition;
(c) Dispositions of equipment or real other property to which is obsolete or no longer used or useful in the extent that (i) such property is exchanged for credit against conduct of the purchase price of similar replacement property or (ii) the proceeds business of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyAccount Party or its Subsidiaries;
(d) Dispositions of property by Xxxxxxxxx from an Account Party or a wholly-owned Subsidiary to any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx other Account Party or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);owned Subsidiary; or
(e) Dispositions permitted by Section 7.04;
(f) Dispositions the Disposition of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx all or any Subsidiary, portion of the life reinsurance operations (the “Life Operations”) conducted directly or indirectly by any Account Party (including Equity Interests through the Disposition of any Subsidiarya Subsidiary that conducts Life Operations); provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiariesthat, (i) no Default or Event of Default shall have occurred and be continuing and (ii) if, after giving effect to each such Disposition, Xxxxxxxxx such Account Party would no longer exist or have any operations, such Disposition shall only be permitted if the obligations hereunder of such Account Party with respect to any outstanding Letters of Credit issued for its account have been (i) assumed by another Account Party, (ii) terminated or expired or (iii) dealt with in pro forma compliance any other manner reasonably satisfactory to the Administrative Agent (after consultation with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueLenders).
Appears in 2 contracts
Samples: Unsecured Credit Agreement (Xl Group PLC), Secured Credit Agreement (Xl Group PLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–-Owned Subsidiary of Xxxxxxxxx Xxxxxxxxx; provided that if the transferor of the property is a Loan Party, the transferee must be a Loan Party or (ii) to a joint venture or to a non venture, any non-Wholly-Owned Subsidiary of Xxxxxxxxx or any Subsidiary that is not a Loan Party, to the extent constituting cash for the fair market value of such property is received from such Disposition or such Disposition constitutes an Investment permitted by Section 7.03(h7.03(c);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;; 172003018 161402032v1
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable (x) in the ordinary course of business (exclusive of factoring or similar arrangements) or (y) in connection with the collection or compromise thereof, so long as the account debtor with respect thereto has instituted or consented to the institution of any proceeding under any Debtor Relief Law;
(h) leases, subleases, licenses and sublicenses granted to others in the ordinary course of business that do not materially interfere with the ordinary conduct of the business of Xxxxxxxxx or any of its Subsidiaries and do not secure Indebtedness; and
(hi) in addition to the Dispositions permitted by clause (a) through clause (gh) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its SubsidiariesSubsidiaries as of the Closing Date; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesSubsidiaries as of the Closing Date, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such DispositionDisposition and the application of proceeds thereof, Xxxxxxxxx shall be in pro forma compliance Pro Forma Compliance as of the date of the Disposition with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (hi) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Carpenter Technology Corp), Credit Agreement (Carpenter Technology Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete used, obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and the abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the management of a Loan Party, no longer economically practicable to maintain or useful in the conduct of the business of such Loan Party and its Subsidiaries, taken as a whole;
(b) Dispositions of of: (i) inventory and or Intellectual Property in the ordinary course of businessbusiness consistent with past practices; or (ii) Intellectual Property pursuant to licenses permitted by Section 7.01(m);
(c) Dispositions of equipment or real property to the extent that that: (i) such property is exchanged for credit against the purchase price of similar replacement property equipment; or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price acquisition of such replacement propertyequipment;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h7.04(b);
(e) Dispositions (i) the unwinding of any Swap Contract; (ii) to the extent permitted by Section 7.04hereunder, Restricted Payments; and (iii) to the extent permitted hereunder and otherwise constituting Dispositions, Investments;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in connection with the collection or compromise thereofbusiness; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests for cash consideration that are not otherwise permitted under this Section 7.05 to Persons who are not Affiliates of any SubsidiaryLoan Party if:
(i) (A) immediately prior to and immediately after giving effect to any such Disposition, there does not exist a Default; provided that and (B) such Dispositions consummated during the term of this Agreement Disposition could not reasonably be expected to result in a Default;
(ii) the aggregate do fair market value of all assets so sold by Loan Parties and their Subsidiaries does not exceed twenty-five percent One Million Five Hundred Thousand Dollars (25%$1,500,000) of the total assets of Xxxxxxxxx and its Subsidiariesin Fiscal Year 2019 or Seven Hundred Fifty Thousand Dollars ($750,000) in any Fiscal Year occurring thereafter; provided further that and
(iii) to the extent the property subject to any Net Proceeds of such Disposition represents more than five percent exceed, together with the other Dispositions permitted under Section 7.05(a), One Million Five Hundred Thousand Dollars (5%$1,500,000) in the aggregate for all such Dispositions in any Fiscal Year, such Net Proceeds are, if and to the extent required by Section 2.03(c), applied within one hundred and eighty (180) days of receipt thereof by Loan Parties or any Subsidiary thereof to the repayment of the total assets Obligations; provided that a Responsible Officer of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default Administrative Loan Party shall have occurred notified Administrative Agent promptly after its determination to so apply or use the Net Proceeds and be continuing shall have certified the receipt of not less than fair market value for such property and (ii) after giving effect to each the proper application of such Disposition, Xxxxxxxxx shall be Net Proceeds in pro forma compliance accordance with the covenants set forth in this Section 7.12 of this Agreement7.05(h); provided, however, provided that any Disposition pursuant to clauses (a) through (h) any of property having a book value in excess the foregoing subsections of $25,000,000 this Section 7.05 shall be for not less than fair market value.
Appears in 2 contracts
Samples: Loan and Security Agreement (Live Oak Acquisition Corp), Loan and Security Agreement (Live Oak Acquisition Corp)
Dispositions. Xxxxxxxxx The Company will not, and will not cause or permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyProperty and Dispositions of property no longer used or useful in the conduct of the business of the Company and the Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of inventory and immaterial assets, in each case, in the ordinary course of business;
(c) Dispositions of equipment or real property Property to the extent that (i) such property Property is exchanged for credit against the purchase price of similar replacement property Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) Property to Xxxxxxxxx the Company or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Subsidiary;
(e) (i) Dispositions permitted by Sections 6.03 (other than Section 7.046.03(a)), 6.04 and 6.05 and (ii) Liens permitted by Section 6.02 and (iii) Dispositions of Receivables and Permitted Receivables Related Assets in connection with Permitted Receivables Facilities;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Company and the Subsidiaries;
(i) transfers of Property to the extent subject to Casualty Events;
(j) Dispositions of other Property by the Company and its Subsidiaries with an aggregate fair market value (as determined in good faith by the Company) for all such Dispositions in any fiscal year not to exceed 15% of the Consolidated Tangible Assets as at the last day of the immediately preceding fiscal year with unused amounts from any fiscal year being available for additional Dispositions in the next succeeding fiscal year only (it being understood that any Disposition in any fiscal year pursuant to this clause (j) shall be deemed first to have utilized any amount carried forward from any prior year before being applied to the 15% limitation referred to above for such fiscal year);
(k) Dispositions of Investments in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) any Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in its best interests and not materially adverse to the Lenders and, if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to a U.S. Loan Party; and
(hm) in addition to sale and leasebacks of properties acquired following the Dispositions permitted by clause (a) through clause (g) Original Closing Date within 180 days of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarythe acquisition thereof; provided that for the purpose of making all calculations under Section 6.10(j), the Company shall use the fair market value of such Dispositions consummated during Property at the term time of this Agreement such Disposition in the aggregate do not exceed twenty-five percent (25%) good faith determination of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.Company;
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:except the following (each a “Permitted Disposition”):
(a) Dispositions of obsolete inventory in the ordinary course of business;
(b) Dispositions consisting of licenses for the use of the IP Rights of Borrower and its Subsidiaries in the ordinary course of business that are either non-exclusive or that may be exclusive in one or more respects as to a particular field of use, geographic area or limited period of time that do not result in a legal transfer of title to or all substantial rights in the licensed property under applicable Law;
(c) Dispositions of obsolete, unneeded or worn out propertyproperty which such Person determines in good faith are no longer useful in the business of such Person, whether now owned or hereafter acquired, in the ordinary course of businessbusiness to non-Affiliated third parties with a value not to exceed the Threshold Amount in any calendar year;
(b) Dispositions of inventory and in the ordinary course of business;
(cd) 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 (and in any event within 180 days) applied to the purchase price of such replacement property;
(de) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx Borrower or to a Wholly–Wholly Owned Subsidiary Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Guarantor, the transferee thereof must either be Borrower or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04Guarantor;
(f) Dispositions of Cash Equivalents otherwise permitted by Article VIII, including, Sections 8.01, 8.02, 8.04, 8.06, and Eligible Investments in the ordinary course of business8.08;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in the ordinary course of business or Accounts in connection with the collection or compromise thereofthereof in the ordinary course of business and consistent with past practice; and
(h) other Dispositions so long as (i) at least 75% of the consideration paid in addition to connection therewith shall be cash or Cash Equivalents paid contemporaneous with consummation of the Dispositions permitted by clause transaction and shall be in an amount not less than the fair market value of the property disposed of, (aii) through clause such transaction is not a Sale and Leaseback Transaction, (giii) such transaction does not involve the sale or other disposition of this Section 7.05, Dispositions of property of Xxxxxxxxx or a minority equity interest in any Subsidiary, including Equity Interests (iv) such transaction does not involve a sale or other disposition of any Subsidiary; provided that such Dispositions consummated during the term Accounts other than Accounts owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this Agreement in Section 8.05, and (v) the aggregate do book value of all of the assets sold or otherwise disposed of by the Loan Parties and their Subsidiaries in all such transactions shall not exceed twenty-five percent (25%x) in any fiscal year of Borrower, 10% of Consolidated Total Assets (as determined as of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) last day of the total assets of Xxxxxxxxx most recently ended fiscal quarter for which financial statements have been delivered) and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.WEST\275206959.13
Appears in 1 contract
Samples: Credit Agreement (Wageworks, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyProperty, whether now owned or hereafter acquired, in the ordinary course Ordinary Course of businessBusiness;
(b) Dispositions of inventory and Inventory in the ordinary course Ordinary Course of businessBusiness;
(c) Dispositions of equipment or real property Equipment to the extent that (i) such property Property is exchanged for credit against the purchase price of similar replacement property Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of property Property by Xxxxxxxxx a Borrower or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx a US Borrower or to a Wholly–Owned Subsidiary wholly-owned Subsidiary; provided that if the transferor of Xxxxxxxxx such Property is a Borrower or (ii) to a joint venture Guarantor, the transferee thereof must either be a US Loan Party; provided, further, that if the transferor is the European Holdco, the transferee may also be the European Borrower or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Guarantor;
(e) Dispositions permitted by Section 7.02 or Section 7.04;
(f) Dispositions non-exclusive or exclusive (within defined fields of Cash Equivalents and Eligible Investments application) licenses of IP Rights in the ordinary course Ordinary Course of businessBusiness and substantially consistent with past practice; provided that such licenses are granted on an arm’s length basis and to Persons other than Affiliates of the Borrowers;
(g) Dispositions of IP Rights that are Non-Material Intellectual Property; provided that at the sale, assignment, transfer, time of such Disposition, discount no Event of Default shall exist or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; andwould result from such Disposition;
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property Real Estate (other than the Eligible Real Estate Assets and appurtenant real estate) owned by any Borrower or Subsidiary that is no longer used in the Ordinary Course of Xxxxxxxxx or any Subsidiary, including Equity Interests of any SubsidiaryBusiness; provided that at the time of such Dispositions consummated during the term Disposition, no Default shall exist or would result from such Disposition;
(i) a Disposition pursuant to a sale-leaseback of this Agreement in the aggregate do not exceed twenty-five percent any Equipment or Real Estate (25%including buildings or other fixtures thereon) of the total assets of Xxxxxxxxx Borrowers or any Subsidiary (other than the Eligible Real Estate Assets and its Subsidiariesappurtenant real estate thereto); provided further that to at the extent the property subject to any such Disposition represents more than five percent (5%) time of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx no Default shall be exist or would result from such Disposition;
(j) sales of Accounts of Non-Loan Party Subsidiaries in pro forma compliance connection with the covenants set forth in Section 7.12 of this Agreementone or more foreign securitization programs; provided, however, that the aggregate face amount of the Accounts sold (less the applicable discount), together with all Indebtedness outstanding under Section 7.03(f), shall not exceed $75,000,000 in the aggregate at any time outstanding; and
(k) Dispositions by the Borrowers and their Subsidiaries not otherwise permitted under this Section 7.05, other than Dispositions of Borrowing Base Collateral; 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 (j) in any fiscal year shall not exceed $25,000,000 and (iii) at least 75% of the consideration for Property disposed of pursuant to this clause (j) with a fair market value in excess of $5,000,000 shall consist of cash or Cash Equivalents; provided, however, that (x) any Disposition pursuant to clauses (a) through (hk) of property having a book value in excess of $25,000,000 shall be for fair market value, (y) with respect to clauses (a) through (g) and clause (i), at least 75% of the consideration therefor shall consist of cash or Cash Equivalents and (z) with respect to clause (j), one hundred percent (100%) of the consideration therefor shall consist of cash or Cash Equivalents.
Appears in 1 contract
Samples: Credit Agreement (Imation Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness or other assets (including abandonment of any IP Rights) to the extent the Loan Parties have determined in their reasonable business judgment that such assets are no longer useful in the business of the Loan Parties;
(b) Dispositions of inventory and 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 Xxxxxxxxx the Borrower or any Subsidiary of Xxxxxxxxx (i) Guarantor to Xxxxxxxxx the Borrower or to another Guarantor that is a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Domestic Subsidiary;
(e) Dispositions permitted by Section 7.04[intentionally omitted];
(f) Dispositions non-exclusive licenses of Cash Equivalents IP Rights in the ordinary course of business and Eligible Investments substantially consistent with past practice for terms not exceeding five (5) years;
(g) sales or discounts without recourse of accounts receivable or notes receivable arising in the ordinary course of business;
(gh) the saleleases and subleases of real property entered into by Loan Parties and their Domestic Subsidiaries, assignmentas lessors or sublessors, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business at arm’s length and on market terms;
(i) so long as no Event of Default is then existing or would resulting therefrom, licenses of IP Rights to a present or future franchisee of any Loan Party, subject to franchisee and royalty arrangements entered into on an arm’s length basis and in connection with the collection ordinary course of business;
(j) Dispositions of the Equity Interests or compromise thereofthe assets of any Inactive Subsidiary; and
(hk) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or assets not otherwise permitted under clauses (a)-(j) above not to exceed (A) $10,000,000 in the aggregate for any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated calendar year and (B) $30,000,000 in the aggregate during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; . provided, however, that (x) any Disposition pursuant to clauses this Section 7.05 (aother than clause (d)) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value, (y) at least eighty percent (80%) of the consideration received by the Loan Parties in connection with any Disposition pursuant to this Section 7.05 (other than clause (d)) shall be in the form of cash received on the consummation of such Disposition and (z) this Section 7.05 shall not apply to treasury stock of the Borrower to the extent constituting margin stock (within the meaning of Regulation U of the FRB).
Appears in 1 contract
Samples: Credit Agreement (Einstein Noah Restaurant Group Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) ordinary-course-of-business Dispositions of inventory (i) inventory; (ii) cash or Cash Equivalents; (iii) overdue accounts receivable in connection with the compromise or collection thereof (and not in connection with any financing transaction); and (iv) leases, subleases, rights of way, easements, licenses, and sublicenses that, individually and in the aggregate, do not materially interfere with the ordinary course conduct of businessthe business of a Borrower or its Restricted Subsidiaries and do not materially detract from the value or the use of the property which they affect;
(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 Xxxxxxxxx a Borrower or any Restricted Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx a Borrower or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx to such property is a Loan Party, the extent constituting an Investment permitted by Section 7.03(h)transferee thereof must be a Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions by a Borrower or its Restricted Subsidiaries of Cash Equivalents non-operating assets, operating assets (solely to the extent such Disposition of operating assets does not interfere in any material respect with the business of the Borrowers and Eligible Investments in their respective Restricted Subsidiaries, taken as a whole) or real estate assets (including the ordinary course Equity Interests of businessa Restricted Subsidiary that owns only real estate assets and assets related to the ownership of such real estate assets) not otherwise permitted under this Section 7.05, subject to the following conditions:
(i) that no Event of Default exists at the time of such Disposition or would result from such Disposition;
(gii) that after giving effect to such Disposition on a Pro Forma Basis, the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable Borrowers shall be in the ordinary course of business or in connection compliance with the collection or compromise thereofSection 7.11; and
(hiii) that at least 75% of the purchase price for such asset shall be paid to such Borrower or such Restricted Subsidiary in addition to cash or Cash Equivalents (provided, for the Dispositions permitted by clause (a) through clause (g) purposes of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.clause - 106 - NAI-1535672020v11535672020v8
Appears in 1 contract
Samples: Amendment and Restatement Agreement (CrossAmerica Partners LP)
Dispositions. Xxxxxxxxx will The Loan Parties shall not, and will not cause or nor shall any Loan Party permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:except the following (each, a “Permitted Disposition”):
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and dispositions of property no longer used or useful in the conduct of the business of the Loan Parties and their Subsidiaries;
(b) Dispositions of inventory and 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 disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrowers or to a Wholly–Owned Subsidiary Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx Loan Party, the transferee thereof must either be another Loan Party, in which event the Administrative Agent shall retain its perfected Lien on the property so disposed of, subject to the extent constituting an Investment permitted by Section 7.03(h)same priority as existed prior to such disposition;
(e) Dispositions permitted by Section 7.04SECTION 6.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness non-exclusive licenses of accounts receivable IP Rights in the ordinary course of business and substantially consistent with past practice;
(h) as long as no Event of Default hereof then exists or would arise therefrom, and no Overadvance would result therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory not in the ordinary course of business in connection with Store closings, at arm’s length, provided that (i) such Store closures and related Inventory dispositions shall not exceed, in any Fiscal Year of the collection Lead Borrower and its Subsidiaries, ten percent (10.00%) of the number of the Loan Parties’ Stores as of the beginning of such Fiscal Year (net of new Store openings during the Fiscal Year and relocations (i) occurring substantially contemporaneously, but in no event later than thirty (30) Business Days after the related Store closure date, or compromise thereof(ii) wherein a binding lease has been entered into prior to the related Store closure date) as set forth in the Compliance Certificate delivered pursuant to SECTION 5.02(a), and (ii) as of any date after the Closing Date, the aggregate number of such Store closures since the Closing Date shall not exceed thirty-five percent (35.00%) of the greater of (x) the number of the Loan Parties’ Stores in existence as of the Closing Date or (y) the number of the Loan Parties’ Stores as of the first day of any Fiscal Year beginning after the Closing Date (net of new Store openings during the year and Store relocations (i) occurring substantially contemporaneously, but in no event later than ten (10) Business Days after the related Store closure date or (ii) wherein a binding lease has been entered into prior to the related Store closure date) as set forth in the Compliance Certificate delivered pursuant to SECTION 5.02(a), provided that (x) all sales of Inventory in connection with Store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and (y) the net cash proceeds received in connection with such asset sales shall be applied to prepay the Obligations in accordance with SECTION 2.15(d); and
(hi) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary(other than ABL Priority Collateral and Intellectual Property) not otherwise permitted under this SECTION 6.05, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing exist or would result from such Disposition and (ii) the aggregate book value of all property disposed of pursuant to this clause (i) shall not exceed $15,000,000 in any Fiscal Year or $50,000,000 in the aggregate after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this AgreementClosing Date; provided, however, provided that any Disposition disposition of any property pursuant to clauses this SECTION 6.05 (aexcept for Dispositions pursuant to SECTION 6.05(e) through (h) of property having and Dispositions from a book value in excess of $25,000,000 Loan Party to another Loan Party), shall be for no less than the fair market valuevalue of such property at the time of such disposition and, (1) in the case of Accounts and Inventory solely for cash consideration, and (2) in the case of any other assets, at least seventy-five percent (75.00%) of the consideration is payable in cash at the time of consummation of the transaction.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions by the Borrowers or any of obsolete their respective Subsidiaries of (i) Hydrocarbons in the ordinary course of business for fair market value, or worn out property, whether now owned or hereafter acquired, (ii) other inventory in the ordinary course of business;
(b) Dispositions of inventory and in the ordinary course of businessproperty by any Borrower to another Borrower, by any Subsidiary (other than an Excluded Subsidiary) to a Borrower, or by any Subsidiary (other than an Excluded Subsidiary) or by any Borrower, to a Wholly-Owned Subsidiary that is a Guarantor;
(c) Dispositions of equipment and other real and personal property (including Oil and Gas Properties) for fair market value by any Borrower or real property any Subsidiary to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or exchanged property, or (ii) the proceeds Net Available Cash of such Disposition are reasonably promptly applied is within 180 days Reinvested, and if any portion of such Net Available Cash has not been Reinvested within 180 days from the receipt by such Company of Net Available Cash (including receipt of any deferred payments for any such Disposition, if and when received), then on the Business Day following such 180th day, the Loans shall be prepaid, in an amount equal to the purchase price portion of such replacement property;the Net Available Cash that is not so Reinvested,
(d) other Dispositions for fair market value; provided no Default or Event of property by Xxxxxxxxx Default then exists or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to arises as a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to result thereof; and provided that if the Disposition is for cash and a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted prepayment is required by Section 7.03(h)2.04, the Borrowers shall make such prepayment in accordance with such Section;
(e) Dispositions permitted of the Marcellus Assets provided that PESC and MidContinent shall make the prepayment required under the Borrowing Base Credit Facility and Dispositions by Section 7.04Eastern to MidContinent or to a Borrower of the Marcellus Gathering System;
(f) Dispositions of Cash Equivalents the KPC Pipeline provided that if the Disposition is for cash and Eligible Investments a prepayment is required by Section 2.04(b), the Borrowers shall make such prepayment in the ordinary course of businessaccordance with such Section;
(g) the saleDispositions of property that is no longer commercially viable to maintain or is obsolete, assignment, transfer, Disposition, discount surplus or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereofworn-out property;
(h) Dispositions permitted under Section 7.06; and
(hi) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) Disposition made as part of the total assets Restructure Transactions;
(j) Disposition by PESC of Xxxxxxxxx and its Subsidiaries; membership interests in Eastern;
(k) Disposition by PESC of its membership interests in KPC Pipeline provided further that to the extent the property subject to any that, if such Disposition represents more than five percent is for cash and a prepayment is required by Section 2.04(b), PESC shall make such prepayment in accordance with such Section;
(5%l) Disposition by MidContinent of its equity interests in STP; and
(m) Dispositions that MidContinent and any of its Subsidiaries (which currently exist or that may hereafter be formed) are permitted to make under the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueBorrowing Base Credit Facility.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, destroyed or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business or equipment on or held for lease in the ordinary course of business, including sales, leases or exchanges of such assets, and in connection with the Golden West Agreements, in each case 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 Xxxxxxxxx the Borrower or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary wholly-owned Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to Loan Party, the transferee thereof must be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents lease assets in lease securitization, structured finance or syndication transactions, provided that the Borrower remains in compliance with its limitations under the Borrowing Base and Eligible Investments all other terms and conditions of this Agreement;
(g) Dispositions pursuant to any sale-leaseback transactions under Section 7.03(e);
(h) sales or other Dispositions of assets having a fair market value (as determined by the Borrower in its reasonable discretion) of less than $75,000,000 in the aggregate during any four fiscal quarter period;
(i) Dispositions of cash equivalents in the ordinary course of business;
(gj) the saleleases or subleases of property, assignmentincluding real property, transfer, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business not materially interfering with the conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(k) licenses for the use of IP Rights in the ordinary course of the Borrower’s or such Subsidiary’s business and, to the extent the American Railcar Acquisition has been consummated, the IP Cross License Agreement and the Trademark License Agreement, in each case, as defined in the American Railcar Acquisition Agreement;
(l) Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business;
(m) any surrender or compromise thereofwaiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(n) to the extent constituting a Disposition, Liens, Investments, fundamental changes and Restricted Payments permitted by Sections 7.01, 7.02, 7.04 and 7.06, respectively;
(o) casualty events or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceedings of, any property of the Borrower or any of its Subsidiaries; and
(hp) in addition to the Dispositions permitted by clause sales of any of the real properties located at 0000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx, 0000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx and 0000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxx 00000;
(aq) through clause (g) of this Section 7.05, Dispositions of non-core assets acquired in connection with any Permitted Acquisition or other Investment permitted under Section 7.02 or other assets if the Disposition thereof is required by law (including anti-trust law) or a Governmental Authority;
(r) the assignment, cancellation, abandonment or other Disposition of (i) intellectual property or (ii) real property leases or licenses, that is, in the good faith judgment of Xxxxxxxxx Xxxxxxxx, no longer economically practicable to maintain or useful in the conduct of the business of Borrower and the Subsidiaries, taken as a whole;
(s) [reserved];
(t) Dispositions of Excluded GBW Property; and
(u) Dispositions of Investments in, and issuances of any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants joint venture parties set forth in Section 7.12 of this Agreement; joint venture arrangements and similar binding arrangements. provided, however, that (1) any Disposition pursuant to clauses (ac), (f), (g) through and (hi) of property having a book value in excess of $25,000,000 shall be for fair market valuevalue and (2) no Disposition of less than all of the Equity Interests of a Subsidiary Guarantor to Person that is not a Loan Party shall be permitted by this Section 7.05.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings and the Restricted Subsidiaries;
(b) Dispositions of inventory and goods held for sale 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; provided that to the extent the property being exchanged constitutes ABL First Lien Collateral, such replacement property shall constitute ABL First Lien Collateral;
(d) Dispositions of property by Xxxxxxxxx to Holdings or any Subsidiary a Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (ii) such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.02 (other than pursuant to a joint venture or to a non Wholly-Owned Subsidiary clause (4) of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(hdefinition of “Permitted Investments”);
(e) Dispositions permitted by Sections 6.02 (other than pursuant to clause (4) of the definition of “Permitted Investments”), 6.04 and 6.06 and Liens permitted by Section 7.046.01;
(f) Dispositions of property pursuant to Sale and Lease-Back transactions;
(g) Dispositions of Cash Equivalents 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 Eligible which do not materially interfere with the business of the Company and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 6.05; provided that (i) such Disposition shall be for fair market value as reasonably determined by Holdings or the applicable Restricted Subsidiary in good faith, (ii) the Company shall deliver an updated U.S. Borrowing Base Certificate or Canadian Borrowing Base Certificate, as applicable, within ten (10) Business Days following the Disposition thereof if more than 10% of the assets included in the most recent calculation of the Borrowing Base are being disposed of pursuant to this clause (j), (iii) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists or would result from such Disposition), no Event of Default shall exist or would result from such Disposition; and (iv) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $10,000,000, Holdings or any of the Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Restricted Subsidiary, other than liabilities constituting Subordinated Indebtedness, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within one hundred and eighty (180) days following the closing of the applicable Disposition, (C) Indebtedness (other than Subordinated Indebtedness) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Company in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess of the greater of $20,000,000 and 10.0% of EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection, settlement 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 Company or any of its Restricted Subsidiaries that is not in contravention of Section 6.07; provided that to the extent the property being transferred constitutes ABL First Lien Collateral, such replacement property shall constitute ABL First Lien Collateral;
(o) the unwinding of any Hedging Obligations;
(p) any Disposition of Receivables Transaction Assets pursuant to a Permitted Receivables Transaction;
(q) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(r) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business, other than the licensing of intellectual property on a long-term basis;
(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;
(gt) the sale, assignment, transfer, Disposition, discount issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable Law;
(u) Dispositions of non-core or forgiveness obsolete assets acquired in connection with a Permitted Acquisition to the extent Holdings or any of accounts receivable its Restricted Subsidiaries has entered into a legally binding commitment to Dispose of such property or assets within twelve (12) months of the consummation of the Permitted Acquisition thereof;
(v) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of Holdings or any Restricted Subsidiary as a whole, as determined in good faith by Holdings;
(w) [reserved]
(x) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any direct or indirect parent company of Holdings, Holdings or any Subsidiary;
(y) [reserved]
(z) Dispositions of assets in connection with the collection closing or compromise thereofsale of an office in the ordinary course of business of the Company and the Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) on the date on which the agreement governing such Disposition is executed, no Event of Default shall result and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(aa) the sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold in the ordinary course of business thereafter; and
(hbb) Dispositions of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in addition to the Dispositions ordinary course of business in exchange for cash and/or Cash Equivalents. To the extent any Collateral is Disposed of as expressly permitted by clause (a) through clause (g) of this Section 7.056.05 to any Person other than a Loan Party, Dispositions such Collateral shall be sold free and clear of property of Xxxxxxxxx or any Subsidiarythe Liens created by the Loan Documents, including Equity Interests of any Subsidiary; provided and, if requested by the Agent, upon the certification by the Company that such Dispositions consummated during Disposition is permitted by this Agreement, the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx Agent shall be authorized to take any actions deemed appropriate in pro forma compliance with order to effect the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueforegoing.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Parent and its Subsidiaries;
(b) Dispositions of inventory and goods held for sale 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 other property used or useful in the business of the Borrowers and their Subsidiaries or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx to a Borrower or any a Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary Borrower; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to Loan Party the transferee thereof must be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Sections 7.02, 7.04 and 7.06 and Liens permitted by Section 7.047.01;
(f) Dispositions of property pursuant to sale-leaseback transactions; provided that the Net Cash Proceeds thereof are applied in accordance with Section 2.03(b)(iii);
(g) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(gh) leases, subleases, licenses or sublicenses (including the saleprovision of software under an open source license), assignment, transfer, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business or in connection and which do not materially interfere with the collection business of the Parent and its Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(j) Dispositions of property not otherwise permitted under this Section 7.05 in an aggregate amount not to exceed $862,500 in the aggregate in any fiscal year;
(k) Dispositions of Investments in joint ventures to the extent required by, or compromise thereofmade pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) the unwinding of any Swap Contract in the ordinary course of business; and
(hm) the lapse or abandonment in addition to the Dispositions permitted by clause (a) through clause (g) ordinary course of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests business of any Subsidiary; provided that such Dispositions consummated during the term registrations or applications for registration of this Agreement any Intellectual Property that, in the aggregate do not exceed twenty-five percent (25%) reasonable judgment of the total assets Parent and its Subsidiaries, are not necessary or material in the conduct of Xxxxxxxxx the business of the Parent and its Subsidiaries; provided further that any Disposition of any property pursuant to the extent the property subject this Section 7.05 (except pursuant to any such Disposition represents more than five percent Sections 7.05(a), (5%) of the total assets of Xxxxxxxxx and its Subsidiariese), (i), (k) no Default or Event of Default shall have occurred and be continuing and (iim) after giving effect and except for Dispositions from a Borrower Loan Party to each such Dispositiona Loan Party), Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition as determined by the Borrowers in good faith.
Appears in 1 contract
Dispositions. Xxxxxxxxx The Top Borrower will not, and will shall cause each Restricted Subsidiary not cause to, directly or permit any of its Subsidiaries toindirectly, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness of equipment, machinery, inventory or other assets, including real property, that is obsolete, excess or no longer used or useful in the Top Borrower’s or its Subsidiaries’ businesses and the leasing or subleasing in the ordinary course of business of owned or leased properties which are excess properties or are no longer used or useful in the Top Borrower’s or its Subsidiaries’ businesses;
(b) Dispositions of inventory and in the ordinary course of business;
(c) [reserved]; Dispositions by the Top Borrower of Equity Interests of Esja Attractions, ehf., an Iceland private limited company, owned by the Top Borrower to Pursuit Iceland, Ehf, an Iceland private limited company; provided that, immediately after giving pro forma effect to any such Disposition, Pursuit Iceland, Ehf is a Restricted Subsidiary of the Top Borrower;
(d) 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;
(de) (i) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) Loan Party to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or any other Loan Party and (ii) to leasing of assets of any Restricted Subsidiary that is not a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx Guarantor to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04Top Borrower or any Restricted Subsidiary;
(f) the Blitz Liquidation;
(g) Dispositions permitted by Sections 7.01, 7.02, 7.04 (other than 7.04(c)), 7.06 and 7.12;
(h) the Disposition, abandonment, cancellation or lapse of Cash Equivalents intellectual property which, in the reasonable determination of the Top Borrower, are not material to the conduct of the business of the Top Borrower and Eligible Investments its Subsidiaries, or are no longer economical to maintain in light of their respective use or intended use, in the ordinary course of business;
(gi) Dispositions of cash, Cash Equivalents and short-term marketable securities;
(j) Leases, licenses, subleases or sublicenses by the sale, assignment, transfer, Disposition, discount Top Borrower or forgiveness any Restricted Subsidiary of accounts receivable any real or personal property (including software and intellectual property) in the ordinary course of business or business;
(k) Disposition of receivables in connection with the compromise, settlement or collection thereof;
(l) any surrender or compromise thereofwaiver of contractual rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind that occur in the ordinary course of the Top Borrower’s or any Restricted Subsidiary’s business;
(m) Dispositions of property subject to an Extraordinary Loss;
(n) Dispositions of property having a fair market value of not to exceed the greater of (x) $15,000,000 and (y) (i) during the Minimum Liquidity Period, 1.5% of Consolidated Total Assets or (ii) during the Leverage Test Period, 10% of Consolidated EBITDA of the Top Borrower and its Restricted Subsidiaries for the most recently ended Test Period in any single transaction or series of related transactions;
(o) Dispositions of Investments in joint ventures that are permitted under Section 7.02 or 7.06 to the extent required by, or made pursuant to customary buy/sell arrangements, drag-along rights, put rights, call rights or similar arrangements between the joint venture parties set forth in joint venture or similar binding agreements; and
(hp) Dispositions by the Top Borrower and the Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) no Event of Default shall exist or would result from such Disposition (determined at the date the definitive agreements for such Disposition are entered into), (ii) such Disposition is made at the fair market value, as determined in addition good faith by the Top Borrower, (iii) with respect to Dispositions of property having a fair market value exceeding the greater of (x) $15,000,000 and (y) (A) during the Minimum Liquidity Period, 1.5% of Consolidated Total Assets or (B) during the Leverage Test Period, 10% of Consolidated EBITDA of the Top Borrower and its Restricted Subsidiaries for the most recently ended Test Period, the Top Borrower or the applicable Restricted Subsidiary shall receive not less than 75% of the consideration for such Disposition in the form of (x) cash, (y) Cash Equivalents or (z) Designated Non-cash Consideration 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, not to exceed the greater of (x) $30,000,000 and (y) (A) during the Minimum Liquidity Period, 3% of Consolidated Total Assets or (B) during the Leverage Test Period, 20% of Consolidated EBITDA of the Top Borrower and its Restricted Subsidiaries for the most recently ended Test Period, and (iv) the Net Cash Proceeds of such Disposition are applied to the Dispositions permitted extent required by clause (a) through clause (g) Section 2.05(e). For purposes of determining compliance with this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) event that an Disposition meets the criteria of more than one of the total assets categories of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be described in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses subsections (a) through (ho) above, the Top Borrower may from time to time, in its sole discretion, classify or reclassify such Disposition (or any portion thereof) and will only be required to include the amount and type of such Disposition in one or more of the above subsections. Notwithstanding anything to the contrary in this Section 7.02,7.05, the Top Borrower and Restricted Subsidiaries shall not, directly or indirectly, sell or otherwise transfer any intellectual property having a book value or any fee interest or leasehold interest in excess any real property, in each case, that is material to the operations of $25,000,000 shall be for fair market valueTop Borrower and its Restricted Subsidiaries to any Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Viad Corp)
Dispositions. Xxxxxxxxx No Account Party will, nor will not, and will not cause or it permit any of its Significant Subsidiaries to, make sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily (any Disposition of the foregoing being referred to in this Section as a “Disposition” and any series of related Dispositions constituting but a single Disposition), any of its properties or enter into any agreement assets, tangible or intangible (including but not limited to make any Dispositionsale, assignment, discount or other disposition of accounts, contract rights, chattel paper or general intangibles with or without recourse), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness involving current assets or other invested assets classified on such Account Party’s or its respective Subsidiaries’ balance sheet as available for sale or as a trading account;
(b) Dispositions of inventory and sales, conveyances, assignments or other transfers or dispositions in immediate exchange for cash or tangible assets, provided that any such sales, conveyances or transfers shall not individually, or in the ordinary course aggregate for the Account Parties and their respective Subsidiaries (taken together with any other Dispositions previously made pursuant to this Section 7.02(b)), exceed 5% of businessConsolidated Total Assets at the time of the making of such Disposition;
(c) Dispositions of equipment or real other property to which is obsolete or no longer used or useful in the extent that (i) such property is exchanged for credit against conduct of the purchase price of similar replacement property or (ii) the proceeds business of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyAccount Party or its Subsidiaries;
(d) Dispositions of property by Xxxxxxxxx from an Account Party or a wholly-owned Subsidiary to any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx other Account Party or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);owned Subsidiary; or
(e) Dispositions permitted by Section 7.04;
(f) Dispositions the Disposition of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx XL Lifeall or any Subsidiary, portion of the life reinsurance operations (the “Life Operations”) conducted directly or indirectly by any Account Party (including Equity Interests through the Disposition of any Subsidiarya Subsidiary that conducts Life Operations); provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiariesprior, (i) no Default or Event of Default shall have occurred and be continuing and (ii) if, after giving effect to each such Disposition, Xxxxxxxxx such Account Party would no longer exist or have any operations, such Disposition shall only be permitted if the obligations hereunder of XL Lifesuch Account Party with respect to any outstanding Letters of Credit issued for its account have been (i) assumed by another Account Party, (ii) terminated or expired or (iii) dealt with in pro forma compliance with any other manner reasonably satisfactory to the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.Administrative Agent..
Appears in 1 contract
Samples: Credit Agreement (Xl Group PLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Permitted Transfers;
(b) Dispositions of surplus, obsolete or worn out propertyproperty and Dispositions of property that is no longer used or useful in the Business of the Borrower or its Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions , including the abandonment, cancellation, lapse or other Disposition of inventory and Intellectual Property, in each case, which, in the ordinary course reasonable judgment of businessthe Borrower, is no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)7.03 and Section 7.04;
(e) Dispositions permitted by Section 7.04non-exclusive licenses and sub-licenses of trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses and other intellectual property rights (including the provision of software under an open source license) in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
non-core assets (gincluding real estate assets) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or acquired in connection with the collection any Permitted Acquisition or compromise thereof; and
(h) in addition to the Dispositions other Investments permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiaryhereunder; provided that such Dispositions shall be consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) within one year of the total assets consummation of Xxxxxxxxx and its Subsidiariessuch Permitted Acquisition; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) the consideration received for such assets shall be in an aggregate amount at least equal to the fair market value thereof (as determined in good faith by the board of directors of the Borrower) and (ii) no Default or less than 75% thereof shall be paid in cash; and
(g) other Dispositions so long as (i) at the time of such Disposition, no Event of Default shall have occurred and be continuing and exist or shall result therefrom, (ii) after giving effect to each such Disposition, Xxxxxxxxx at least 75% of the consideration paid in 174721465 connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction and shall be in pro forma compliance with an amount not less than the covenants set forth fair market value of the property disposed of, (iii) such transaction does not involve the sale or other disposition of any 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 7.12 of this Agreement; provided7.05, however, that any Disposition pursuant to clauses and (av) through (h) of property having a the aggregate net book value of all of the assets sold or otherwise disposed of by the Loan Parties and their Subsidiaries in excess all such transactions in any fiscal year of the Borrower shall not exceed $25,000,000 shall be for fair market value10,000,000.
Appears in 1 contract
Dispositions. Xxxxxxxxx will The Loan Parties shall not, and will not cause or nor shall any Loan Party permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:except the following (each, a “Permitted Disposition”):
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and dispositions of property no longer used or useful in the conduct of the business of the Loan Parties and their Subsidiaries;
(b) Dispositions of inventory and 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 disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party, the transferee thereof must either be the Borrower or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx another Loan Party, in which event the Administrative Agent shall retain its perfected Lien on the property so disposed of, subject to the extent constituting an Investment permitted by Section 7.03(h)same priority as existed prior to such disposition;
(e) Dispositions permitted by Section 7.04SECTION 6.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of businessEquivalents;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness licenses of accounts receivable IP Rights in the ordinary course of business or in connection and consistent with the collection or compromise thereof; andpast practice;
(h) as long as no Event of Default hereof then exists or would arise therefrom, and no Overadvance would result therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory and other assets not in addition the ordinary course of business in connection with Store closings, at arm’s length, provided that (i) such Store closures and related Inventory and other asset dispositions shall not exceed, in any Fiscal Year of the Borrower and its Subsidiaries, fifteen percent (15%) of the number of the Loan Parties’ Stores as of the beginning of such Fiscal Year (net of Store relocations (A) occurring substantially contemporaneously, but in no event later than sixty (60) Business Days after the related Store closure date, or (B) wherein a binding lease has been entered into prior to the Dispositions permitted by clause related Store closure date) as set forth in the Compliance Certificate delivered pursuant to SECTION 5.02(a), and (aii) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests as of any Subsidiary; provided that such Dispositions consummated during date after the term of this Agreement in Closing Date, the aggregate do number of such Store closures since the Closing Date shall not exceed twenty-five percent (25%) of the total greater of (x) the number of the Loan Parties’ Stores in existence as of the Closing Date or (y) the number of the Loan Parties’ Stores as of the first day of any Fiscal Year beginning after the Closing Date (net of Store relocations (A) occurring substantially contemporaneously, but in no event later than sixty (60) Business Days after the related Store closure date or (B) wherein a binding lease has been entered into prior to the related Store closure date) as set forth in the Compliance Certificate delivered pursuant to SECTION 5.02(a), provided that (x) all sales of Inventory and other assets in connection with Store closings in a transaction or series of Xxxxxxxxx related transactions shall be in accordance with liquidation agreements and its Subsidiaries; provided further that with professional liquidators reasonably acceptable to the Administrative Agent and (y) the net cash proceeds received in connection with such asset sales (to the extent constituting ABL Primary Collateral) shall be applied to prepay the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, Obligations in accordance with SECTION 2.15(d);
(i) Dispositions of property (other than Inventory, Accounts, Pledged Real Estate (other than in compliance with Section 9.24) and Intellectual Property) not otherwise permitted under this SECTION 6.05, provided that (i) at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing exist or would result from such Disposition and (ii) the aggregate book value of all property disposed of pursuant to this clause (i) shall not exceed $250,000,000 in any Fiscal Year or $500,000,000 in the aggregate after the Closing Date;
(j) as long as no Event of Default hereof then exists or would arise therefrom, and no Overadvance would result therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory and other assets not in the ordinary course of business in connection with the closing or other disposition of Kiosks on arm’s length terms, provided that (i) the Appraised Value of Inventory sold pursuant to all such Kiosk closings or other dispositions shall not exceed $100,000,000 in the aggregate, (ii) the net cash proceeds received in connection with such asset sales (to the extent constituting ABL Primary Collateral) shall be applied to prepay the Obligations in accordance with SECTION 2.15(d) and (iii) prior to the consummation of such disposition, the Administrative Agent shall have received a Borrowing Base Certificate setting forth a calculation of the Revolving Credit Borrowing Base or Term Borrowing Base after giving effect to each such Disposition, Xxxxxxxxx disposition; and
(k) the non-recourse sale of Accounts which would otherwise comprise Eligible Trade Receivables or Eligible Wireless Receivables; provided that (i) such sale shall be on arm’s length terms, (ii) the Loan Parties shall receive, contemporaneously with such sale, cash proceeds in an amount not less than the amount of credit attributable to such Accounts in the Revolving Credit Borrowing Base and Term Borrowing Base, and all such proceeds shall be immediately applied to repay the Obligations in accordance with Section 2.15(d), (iii) such Accounts shall, effective upon the consummation of such sale and at all times thereafter, be permanently excluded from the Revolving Credit Borrowing Base and Term Borrowing Base, (iv) not less than two (2) Business Days (or such shorter period of time as the Administrative Agent shall agree) prior to the consummation of such sale, the Administrative Agent shall have received an updated Borrowing Base Certificate giving pro forma compliance effect to such sale, (v) the Administrative Agent shall be satisfied that, after giving pro forma effect to such sale, no Overadvance shall then exist, (vi) all other terms and conditions of such sale shall be reasonably satisfactory to, and approved in writing by, Administrative Agent (including, without limitation, with respect to intercreditor arrangements, the covenants set forth arrangements relating to the receipt of the purchase price by the Administrative Agent, and that appropriate arrangements have been made and will be maintained to reflect such sale in Section 7.12 the calculation and reporting of this Agreementthe Revolving Credit Borrowing Base and Term Borrowing Base); provided, however, and provided that any Disposition disposition of any property pursuant to clauses this SECTION 6.05 (aexcept for Dispositions pursuant to SECTION 6.05(e) through (h) of property having and Dispositions from a book value in excess of $25,000,000 Loan Party to another Loan Party), shall be for no less than the fair market valuevalue of such property at the time of such disposition and, (1) in the case of Accounts, Inventory and Pledged Real Estate solely for cash consideration, and (2) in the case of any other assets, at least seventy-five percent (75%) of the consideration is payable in cash at the time of consummation of the transaction. To the extent any Collateral is disposed of as expressly permitted by this SECTION 6.05 to any Person other than the Borrower or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Borrower, upon the certification delivered to the Administrative Agent by the Borrower that such Disposition is permitted by this Agreement (including, in the case of Pledged Real Estate, pursuant to SECTION 9.24), the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Radioshack Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of (i) inventory and (ii) equipment and goods held for sale in the ordinary course of business;
(ci) any exchange or swap of assets, or lease, assignment or sublease of any real property or personal property for like property for use in a business not in contravention with Section 6.19 and (ii) Dispositions of equipment or real property to the extent that (ix) such property is exchanged for credit against the purchase price of similar replacement property or (iiy) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary among the Borrower and the Restricted Subsidiaries; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx the transferee thereof must be a Loan Party, or to if it is a Wholly–Owned Subsidiary newly incorporated entity, such transferee must become a Loan Party (or amalgamate with a Loan Party) within thirty (30) days of Xxxxxxxxx or such Disposition, (ii) the Investment arising from such Disposition must be a permitted Investment in accordance with Section 7.02 (other than Section 7.02(e)) or (iii) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with the consummation of the transaction and the aggregate fair market value (as determined in good faith by the Borrower) of the property sold, leased, licensed, transferred or otherwise disposed by Loan Parties to a joint venture or to a non WhollyNon-Owned Subsidiary Loan Parties in reliance of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)this clause (d)(iii) in any fiscal year shall not exceed C$10,000,000;
(e) Dispositions permitted by Section 7.047.02 (other than Section 7.02(e)), Section 7.04 (other than Section 7.04(c) or (h)), Section 7.06 (other Section 7.06(d)) and Section 7.12 and Liens permitted by Section 7.01 (other than Section 7.01(m)(ii));
(f) Dispositions with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including pursuant to sale-leaseback transactions; provided that, the Net Cash Proceeds thereof are applied in accordance with Section 2.05(b)(ii);
(g) Dispositions of (i) Cash Equivalents and Eligible Investments (ii) other current assets that were Cash Equivalents when the original Investment in such assets was made and which thereafter fail to satisfy the definition of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including non-exclusive licenses or non-exclusive sublicenses of IP Rights or software, including the provision of software under an open source license, but excluding licenses of IP Rights tantamount to a sale, material exclusive licenses of IP Rights and material exclusive sublicenses of IP Rights), in each case in the ordinary course of businessbusiness and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(gi) Dispositions of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of C$15,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.01); provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Borrower or such Restricted Subsidiary that (i) are assumed by the transferee with respect to the applicable Disposition, (ii) for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing or (iii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding since the First Amendment Effective Date, not in excess of the greater of (i) C$30,000,000 and (ii) 1.2% of Consolidated Total Assets determined at the time of incurrence of such Disposition (calculated on a Pro Forma Basis), with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in Joint Ventures or any Subsidiary that is not Wholly Owned to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture or similar parties set forth in joint venture arrangements and/or similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection, compromise or settlement thereof or in bankruptcy or similar proceedings;
(m) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable provision of Law of any foreign jurisdiction and, in each case, any successor provision), any exchange of like property for use in any business conducted by the Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 6.19;
(o) the saleunwinding of any Cash Management Obligations or Swap Contract;
(p) sales or other dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of an office, assignmentfacility or other location in the ordinary course of business of the Borrower and the Restricted Subsidiaries, transferwhich consist of leasehold interests in the premises of such office, Dispositionfacility or other location, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office, facility or other location; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) such sale shall be on commercially reasonable prices and term in a bona fide arm’s length transaction;
(q) the lapse or abandonment (including failure to maintain) in the ordinary course of business of any registrations or applications for registration of any (i) intellectual property rights that are not necessary or desirable in the conduct of the business of the Borrower or any Restricted Subsidiaries, or (ii) immaterial intellectual property rights that in the good faith determination of the Borrower are no longer economically practicable or commercially desirable to maintain or use in the business of the Borrower and the Restricted Subsidiaries (taken as a whole);
(r) any Disposition (i) arising from foreclosure, casualty, condemnation, expropriation or any similar action or transfers by reason of eminent domain with respect to any property or other asset of the Borrower or any of its Restricted Subsidiaries or (ii) by reason of the exercise of termination rights under any lease, sublease, license, sublicense, concession or other agreement;
(s) any surrender or waiver of contractual rights or the settlement, release, recovery on or surrender of contractual rights or other claims of any kind;
(t) the discount or forgiveness of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable or Investments permitted under this Agreement, in each case in connection with the collection or compromise thereof;
(u) any Disposition of assets of the Borrower or any Restricted Subsidiary or sale or issuance of Equity Interests of any Restricted Subsidiary, which assets or Equity Interests so Disposed have an aggregate fair market value (as determined in good faith by the Borrower) of less than C$10,000,000 in the aggregate for any fiscal year;
(v) any grant in the ordinary course of business of (i) any non-exclusive license of patents, trademarks, software, know-how, copyrights, or any other intellectual property rights, including, but not limited to, grants of franchises or non-exclusive licenses, franchise or non-exclusive license master agreements and/or area development agreements, or (ii) any Permitted Exclusive License;
(w) Dispositions contemplated on the First Amendment Effective Date and set forth on Schedule 7.05(w);
(x) Dispositions required to be made to comply with the order of any Governmental Authority or applicable Laws;
(y) [reserved];
(z) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants;
(aa) [reserved];
(bb) de minimis amounts of equipment provided to employees;
(cc) the Borrower and any Restricted Subsidiary may (i) convert any intercompany Indebtedness to Equity Interests; (ii) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary and (iii) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of the Borrower (or any direct or indirect parent thereof) or any Subsidiary or any of their successors or assigns; and
(hdd) Dispositions in addition to the Dispositions permitted by clause (a) through clause (g) nature of this Section 7.05, Dispositions of property of Xxxxxxxxx asset swaps conducted on an arms-length basis with bona fide third parties unaffiliated with a Borrower or any SubsidiaryAffiliate of a Borrower; provided, including Equity Interests of that no such asset swap may be made at any Subsidiarytime that a Specified Default has occurred and is continuing; provided that such Dispositions consummated during the term any Disposition of this Agreement in the aggregate do not exceed twenty-five percent any property pursuant to Section 7.05(b), (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent c), (5%) of the total assets of Xxxxxxxxx and its Subsidiariesd)(iii), (f), (i), (j) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Dispositiondd), Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition as determined by the Borrower in good faith. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Dispositions. Xxxxxxxxx The Borrower will not, and will not cause or permit any of its Subsidiaries Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyproperty or property no longer used or useful in the business of such Person, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Permitted Investments 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 Xxxxxxxxx to the Borrower or any Subsidiary of Xxxxxxxxx a Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) to Xxxxxxxxx or to the transferee must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (ii) to the extent that the transferee is not a joint venture or Loan Party, then (A) to a non Wholly-Owned Subsidiary of Xxxxxxxxx the extent such Disposition does not constitute an Investment, such Disposition is for fair market value and (B) to the extent constituting an Investment, such Investment permitted by must be a Permitted Investment in a Subsidiary that is not a Loan Party in accordance with Section 7.03(h)6.05;
(e) Dispositions permitted by Section 7.04;
leases, licenses, subleases or sublicenses (fincluding the provision of open source software under an open source license) Dispositions of Cash Equivalents and Eligible Investments granted in the ordinary course of businessbusiness and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;
(i) the lapse of intellectual property rights to the extent such intellectual property rights are not economically desirable in the conduct of the business of the Borrower and its Subsidiaries or (ii) the abandonment of intellectual property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties);
(g) the salediscount, assignmentwrite-off, transfer, Disposition, discount forgiveness or forgiveness Disposition of accounts receivable in the ordinary course of business or in connection with the collection collection, settlement or compromise thereof; and;
(h) Restricted Payments permitted by Section 6.08 and Investments permitted by Section 6.05;
(i) Dispositions of accounts receivable of an A/R Financing Party pursuant to Non-Recourse A/R Financing;
(j) any involuntary loss, damage or destruction of property;
(k) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(l) (i) the sale or other Disposition for value of any contracts or (ii) the early termination or modification of any contract, in addition each case resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event;
(m) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 6.04; provided that the aggregate net book value of all property Disposed of pursuant to this clause (m) in any fiscal year of the Borrower shall not exceed $15,000,000;
(n) the Disposition of any Swap Agreement due to the Dispositions permitted by clause unwinding thereof in accordance with its terms;
(ao) through clause (g) any issuance of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement a Subsidiary to a Loan Party (or, in the case of a Foreign Subsidiary that is a Subsidiary of a Foreign Subsidiary, to such Foreign Subsidiary);
(p) any issuance (i) by the Borrower of its own Equity Interests (other than to the extent resulting in a Change of Control) or (ii) by any Subsidiary of its own Equity Interests to qualify directors where, and to the extent, required by applicable law;
(q) transfers of cash in the ordinary course of business for equivalent value;
(r) Dispositions of non-core assets acquired pursuant to a Permitted Acquisition or other Investment permitted hereunder in an aggregate do amount not to exceed twenty-five percent (25%) 25.0% of the total consideration of the total assets acquired in such Permitted Acquisition or other Investment;
(s) Dispositions of Xxxxxxxxx and its Subsidiaries; provided further that Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants joint venture parties set forth in Section 7.12 of this Agreementjoint venture arrangements and similar binding arrangements; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.and
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, and Dispositions in the ordinary course of businessbusiness of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of inventory inventory, goods and products, cash equivalents, cash or other immaterial assets 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 and shall have, to the extent required thereby, complied with the requirements of Section 6.12 or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertysimilar property and shall have, to the extent required thereby, complied with the requirements of Section 6.12;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment Constituting Restricted Payments permitted by Section 7.03(h)7.07, Permitted Liens and Investments permitted by Section 7.02;
(e) Dispositions permitted of property acquired by Section 7.04the Borrower or any Restricted Subsidiary after the Closing Date pursuant to sale-leaseback transactions; provided that the applicable sale-leaseback transaction (i) occurs within 270 days after the acquisition or construction (as applicable) of such property and (ii) is made for cash consideration not less than the cost of acquisition or construction of such property;
(f) Dispositions of Cash Equivalents and Eligible Investments accounts receivables in connection with the collection or compromise thereof in the ordinary course of business;
(g) Leases, subleases, licenses or sublicenses (including the saleprovision of software under an open source license), assignmenteasements, transferrights of way or similar rights or encumbrances in each case in the ordinary course of business and which do not secure the payment of Indebtedness of a Loan Party (other than pursuant to the Loan Documents) and which do not individually or in the aggregate materially detract from the value of the property subject thereto or materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(h) Dispositions resulting from Casualty Events and transfers of property that has suffered a Casualty Event (constituting a total loss or constructive total loss of such property);
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(j) Dispositions of property, subject to the Security Documents, by the Borrower or any Restricted Subsidiary to the Borrower or to a Wholly Owned Subsidiary of the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor and the applicable transferee shall have, to the extent required thereby, complied with the requirements of Section 6.12;
(k) Dispositions permitted under Section 7.05;
(l) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under clauses (a) through (k) of this Section 7.06 (other than a Disposition of MLP GP Units); provided that (i) at the time of such Disposition, discount no Default shall exist or forgiveness would result from such Disposition and (ii) if the fair market value of accounts receivable the assets subject to such Disposition exceeds $50,000,000, such Disposition is for 75% cash or cash equivalents;
(m) [reserved];
(n) the abandonment, failure to maintain or renew or other Disposition of any IP Rights in the ordinary course of business or as may be decided by Borrower in connection with its reasonable judgment or that are not material to the collection or compromise thereofconduct of the business of the Borrower and its Restricted Subsidiaries; and
(ho) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) allowable under Section 1031 of the total assets Code, any exchange of Xxxxxxxxx and its Subsidiaries, like kind property (iexcluding any boot thereon) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be for use in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; a Similar Business. provided, however, that any Disposition pursuant to clauses clause (a), (b), (c), (e), (f), (i), (j), (k) through or (hl) of property having a book value in excess of $25,000,000 shall be for fair market value. No Loan Party will discount, sell, pledge or assign any notes payable to it, accounts receivable or future income except for Dispositions permitted by clause (f). So long as no Event of Default then exists, the Administrative Agent will, at the Borrower’s request and expense, execute a release, satisfactory to the Borrower and the Administrative Agent, of any Collateral so Disposed of to a Person other than the Borrower or a Guarantor pursuant to this Section.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:except the following (each a “Permitted Disposition”):
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, equipment in the ordinary course of businessbusiness that is substantially worn, damaged, obsolete or, in the judgment of a Loan Party, no longer useful or necessary in its business and is not replaced with similar property having at least equivalent value;
(b) Dispositions of inventory and Inventory in the ordinary course of business;
(c) Dispositions of equipment or real property subject to the extent satisfaction of the Updated Borrowing Base Requirement, Store closings (including the termination or non-renewal of any applicable Lease or contract), bulk sales or other dispositions of the Inventory of a Loan Party conducted in orderly fashion in accordance with the applicable Store contract or otherwise and otherwise typical for the college bookseller industry, together with related Inventory (“Customary Dispositions”), provided, that any other Store closures and related Inventory dispositions that are not Customary Dispositions shall be permitted hereunder so long as such closures and dispositions shall not exceed (i) in any Fiscal Year of the Lead Borrower, ten percent (10.0%) of the number of the Loan Parties’ Store contracts as of the beginning of such property is exchanged for credit against the purchase price Fiscal Year (net of similar replacement property or new Store openings) and (ii) in the proceeds aggregate from and after the Restatement Effective Date, twenty-five percent (25.0%) of the number of such Disposition are reasonably promptly applied to Loan Parties’ Store contracts in existence as of the purchase price Restatement Effective Date (net of such replacement propertynew Store openings);
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non WhollyInventory constituting Licensed Merchandise in accordance with the Merchandising Agreement and the E-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Commerce Agreement;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions non-exclusive licenses of Cash Equivalents and Eligible Investments Intellectual Property of a Loan Party in the ordinary course of business;
(f) sales, transfers and dispositions by any Loan Party to a Borrower;
(g) as long as no Default exists or would arise therefrom, Dispositions of Immaterial Subsidiaries, so long as (x) such Subsidiary has no (i) assets of the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable type included in the ordinary course of business Borrowing Base or (ii) Intellectual Property and (y) to the extent such Disposition gives rise to a mandatory prepayment obligation under Section 2.05(c) or (e), such Net Proceeds thereof are so received and applied in connection accordance with the collection terms of Section 2.05(c) or compromise thereof(e) and Section 2.05(f).
(h) [reserved];
(i) [reserved];
(j) any Disposition of Real Estate to a Governmental Authority as a result of the condemnation of such Real Estate;
(k) termination or non-renewal of a Lease and granting a lease, sublease, license or other occupancy interest with respect to any owned Real Estate or any real property subject to a Lease, in each case, so long as such action could not reasonably be expected to result in Material Adverse Effect; and
(hl) in addition to the as long as no Default exists or would arise therefrom and without duplication of Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (hk) above, other Dispositions (other than of property having assets of the type included in the Borrowing Base or any Intellectual Property or of the Equity Interests of any Subsidiary that owns any such assets), provided, that the aggregate fair market value of all assets Disposed of in reliance upon this paragraph (l) shall not exceed $35,000,000 during any Fiscal Year of the Lead Borrower and if such Disposition gives rise to a book value mandatory prepayment obligation under Section 2.05(c) or (e), Net Proceeds thereof are applied in excess accordance with the terms of $25,000,000 Section 2.05(c) or (e) and Section 2.05(f); provided, however, to the extent applicable and without limiting the requirements of Section 6.02(b), the provisions of this Section shall in all cases be subject to the satisfaction of the Updated Borrowing Base Requirement. In addition and notwithstanding anything to the contrary contained herein, no Material IP shall be for fair market valuepermitted to be transferred (including by way of an exclusive license, investment, Disposition or otherwise), or come to be owned by, any Subsidiary that is not a Loan Party.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make (i) Make any Disposition or (ii) enter into any agreement to make any DispositionDisposition (unless, in the case of this clause (ii), all Obligations (other than contingent Obligations in respect of unasserted indemnity claims) would be repaid in cash and all Commitments would terminate substantially simultaneously with the consummation of such Disposition or such Disposition is conditioned upon obtaining the requisite Lender consent hereunder), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Specified U.S. Borrower and its Subsidiaries;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary to the Specified U.S. Borrower or to a Subsidiary; provided that (A) if the transferor of Xxxxxxxxx such property is a U.S. Loan Party either (i) to Xxxxxxxxx or to the transferee is a Wholly–Owned Subsidiary of Xxxxxxxxx U.S. Loan Party or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02 and (B) if the transferor of such property is a joint venture Canadian Loan Party either (i) the transferee is a Loan Party or to a non Wholly-Owned Subsidiary of Xxxxxxxxx (ii) to the extent constituting such transaction constitutes an Investment Investment, such transaction is permitted by under Section 7.03(h)7.02;
(e) Dispositions permitted by Section 7.04Sections 7.04 and 7.06;
(f) Dispositions by the Specified U.S. 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 shall not exceed the greater of (x) $50,000,000 and (y) 5.0% of Consolidated Tangible Assets, and (ii) the purchase price for such property shall be paid to the Specified U.S. Borrower or such Subsidiary for not less than 7575.0% cash consideration;
(g) Dispositions of cash and Cash Equivalents Equivalents;
(h) Dispositions of (i) defaulted Accounts of financially-troubled debtors in connection with the collection or compromise thereof, (ii) Accounts of Subsidiaries of the Specified U.S. Borrower that are not Loan Parties in connection with the collection or compromise thereof and Eligible Investments (iii) with 10 days’ prior notice to the Administrative Agent, other Accounts as to which the applicable Loan Party or other Subsidiary has reasonable concerns as to credit quality;
(i) licensing or sublicensing of IP Rights in the ordinary course of business;
(gj) the saleleases, assignmentsubleases, transfer, Disposition, discount licenses or forgiveness sublicenses of accounts receivable property in the ordinary course of business or in connection and which do not materially interfere with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) business of the total assets of Xxxxxxxxx Specified U.S. Borrower and its Subsidiaries; provided further that to the extent the ;
(k) transfers of property subject to any such Disposition represents more than five percent (5%) casualty events upon receipt of the total assets net cash proceeds of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.casualty event;
Appears in 1 contract
Samples: Credit Agreement (Nortek Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and accounts receivable in connection with collection, in each case in the ordinary course of business;
(c) Dispositions of equipment or real property (excluding real property subject to a Mortgage in accordance herewith) 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Company or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)any other Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) licenses of, and royalty-sharing and revenue-sharing agreements with respect to, Intellectual Property;
(g) any Disposition of the Ohio Sale/Leaseback Property to the State of Ohio or a public utility or other Governmental Authority of the State of Ohio pursuant to a Permitted Ohio Sale/Leaseback;
(h) Dispositions of property by any Unrestricted Subsidiary that could not reasonably be expected individually or in the aggregate to have a Material Adverse Effect;
(i) Dispositions of Intellectual Property to a Royalty-Backed Financing Subsidiary in accordance with a Permitted Royalty-Backed Financing, provided that such Disposition occurs prior to the date of any Covenant Triggering Event;
(j) so long as immediately before and after giving pro forma effect to such Disposition no Covenant Triggering Event has occurred and no Default has occurred and is continuing, Dispositions of property by the Company or any other Loan Party not otherwise permitted under this Section 7.05 in an aggregate amount not to exceed $10,000,000 in any fiscal year;
(k) Disposition of cash and Cash Equivalents and Eligible Investments in the ordinary course of business; provided, that after the occurrence of an Activation Event, Dispositions of cash or Cash Equivalents held in an account subject to an Account Control Agreement shall be governed by such Account Control Agreement;
(gl) Disposition of condemned property by transfer to the sale, assignment, transfer, Disposition, discount applicable Governmental Authority (whether by deed in lieu of condemnation or forgiveness otherwise) and transfer of accounts receivable in property subject to a casualty to the ordinary course applicable insurer of business such property or its designee in connection with the collection or compromise thereofan insurance settlement; and
(hm) in addition to the Dispositions leases and subleases of real property permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement7.01(o); provided, however, that any Disposition pursuant to clauses (aSection 7.05(a) through (hSection 7.05(f), Section 7.05(j), Section 7.05(k) of property having a book value in excess of $25,000,000 and Section 7.05(m) shall be for fair market value.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned property or hereafter acquired, surplus assets (including dormant manufacturing facilities) that are no longer used or usable in the ordinary course business of businessthe Company and its Restricted Subsidiaries;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Company or to a Wholly–Wholly Owned Subsidiary Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Borrower, the transferee thereof must either be the Company or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)another Borrower;
(e) Dispositions permitted by Section 7.04Sections 7.04 or 7.06;
(f) Dispositions of Cash Equivalents property or assets in an aggregate amount in any fiscal year that, when combined with all other Dispositions previously made under this subsection (f) during such fiscal year (and Eligible Investments after giving pro forma effect to such proposed Disposition), do not exceed 12.5% Total Consolidated Assets as of the end of the immediately preceding fiscal year for which financial statements are required to be delivered to the Administrative Agent and the Lenders pursuant to Section 6.01, or for the 2015 fiscal year, the Audited Financial Statements (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Dispositions in any fiscal year shall at a later time exceed 12.5% of the ordinary course Total Consolidated Assets so long as at the time of businesseach such Disposition (and immediately after giving pro forma effect thereto) each such Disposition was permitted to be made under this subsection (f)); provided that, to the extent the proceeds of any Disposition made under this subsection (f) are reinvested within same fiscal year in which such Disposition is made in assets used or usable in a business permitted by Section 7.07 as certified in writing by a Responsible Officer to the Administrative Agent (which such writing shall indicate the date and amount of such reinvestment and the assets or businesses reinvested in), then from and after the date of receipt by the Administrative Agent of the certificate evidencing such reinvestment the amount so reinvested will be credited against the amount of Dispositions made in such fiscal year in determining the aggregate amount of Dispositions permitted under this subsection (f); provided further that the amount of any Disposition for purposes of compliance with this subsection (f) shall be the fair market value as determined by the Company in good faith;
(g) the saleCompany or any Restricted Subsidiary may write-off, assignmentdiscount, transfer, Disposition, discount sell or forgiveness otherwise Dispose of accounts receivable defaulted or past due receivables and similar obligations in the ordinary course of business and not as part of an accounts receivable financing transaction;
(h) to the extent constituting a Disposition, (i) issuances of Equity Interests in the ordinary course of business and (ii) the issuance of Equity Interests of the Company or any Restricted Subsidiary pursuant to an employee stock incentive plan or grant or similar equity plan or 401(k) plans of the Company or any Restricted Subsidiary for the benefit of directors, officers, employees or consultants;
(i) the Disposition of any Swap Contract;
(j) Dispositions of Investments in cash and Cash Equivalents;
(k) licenses and sublicenses of intellectual property rights in the ordinary course of business not interfering, individually or in connection the aggregate, in any material respect with the collection conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole;
(l) leases, subleases, licenses or compromise sublicenses of real or personal property granted by the Company or any of its Restricted Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of the Company and its Restricted Subsidiaries, taken as a whole;
(m) transfers or other Dispositions of property subject to condemnation, takings or casualty events;
(n) Dispositions of Unrestricted Subsidiaries, including, without limitation, Dispositions of any Indebtedness of, or other Investments in, Unrestricted Subsidiaries;
(o) Dispositions of assets acquired pursuant to an acquisition or other Investment which assets are not used or useful to the core or principal business of the Company and its Restricted Subsidiaries;
(p) Dispositions of Receivables and Related Assets pursuant to the terms of any Permitted Receivables Financing in accordance with the terms thereof;
(q) Dispositions of assets pursuant to Tax Incentive Programs; and
(hr) Dispositions of assets previously disclosed in addition reasonable detail to the Dispositions permitted by clause Administrative Agent and the Lenders in writing at least three (a3) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any SubsidiaryBusiness Days prior to the Restatement Effective Date; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) any Disposition made between a Loan Party and a Subsidiary of the total assets of Xxxxxxxxx and its Subsidiaries; provided further Company that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having is not a book value in excess of $25,000,000 Loan Party shall be for fair market valuevalue (determined in good faith by the Company at the time of such Disposition).
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of (i) inventory and (ii) equipment and goods held for sale in the ordinary course of business;
(ci) any exchange or swap of assets, or lease, assignment or sublease of any real property or personal property for like property for use in a business not in contravention with Section 6.19 and (ii) Dispositions of equipment or real property to the extent that (ix) such property is exchanged for credit against the purchase price of similar replacement property or (iiy) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary among the Borrower and the Restricted Subsidiaries; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (i) to Xxxxxxxxx the transferee thereof must be a Loan Party, or to if it is a Wholly–Owned Subsidiary newly incorporated entity, such transferee must become a Loan Party (or amalgamate with a Loan Party) within thirty (30) days of Xxxxxxxxx or such Disposition, (ii) the Investment arising from such Disposition must be a permitted Investment in accordance with Section 7.02 (other than Section 7.02(e)) or (iii) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with the consummation of the transaction and the aggregate fair market value (as determined in good faith by the Borrower) of the property sold, leased, licensed, transferred or otherwise disposed by Loan Parties to a joint venture or to a non WhollyNon-Owned Subsidiary Loan Parties in reliance of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)this clause (d)(iii) in any fiscal year shall not exceed C$10,000,000;
(e) Dispositions permitted by Section 7.047.02 (other than Section 7.02(e)), Section 7.04 (other than Section 7.04(c) or (h)), Section 7.06 (other Section 7.06(d)) and Section 7.12 and Liens permitted by Section 7.01 (other than Section 7.01(m)(ii));
(f) Dispositions with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including pursuant to sale-leaseback transactions; provided that, the Net Cash Proceeds thereof are applied in accordance with Section 2.05(b)(ii);
(g) Dispositions of (i) Cash Equivalents and Eligible Investments (ii) other current assets that were Cash Equivalents when the original Investment in such assets was made and which thereafter fail to satisfy the definition of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including non-exclusive licenses or non-exclusive sublicenses of IP Rights or software, including the provision of software under an open source license, but excluding licenses of IP Rights tantamount to a sale, material exclusive licenses of IP Rights and material exclusive sublicenses of IP Rights), in each case in the ordinary course of businessbusiness and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(gi) Dispositions of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of C$15,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.01); provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Borrower or such Restricted Subsidiary that (i) are assumed by the transferee with respect to the applicable Disposition, (ii) for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing or (iii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of (i) C$30,000,000 and (ii) 1.2% of Consolidated Total Assets determined at the time of incurrence of such Disposition (calculated on a Pro Forma Basis), with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in Joint Ventures or any Subsidiary that is not Wholly Owned to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture or similar parties set forth in joint venture arrangements and/or similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection, compromise or settlement thereof or in bankruptcy or similar proceedings;
(m) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable provision of Law of any foreign jurisdiction and, in each case, any successor provision), any exchange of like property for use in any business conducted by the Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 6.19;
(o) the saleunwinding of any Cash Management Obligations or Swap Contract;
(p) sales or other dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of an office, assignmentfacility or other location in the ordinary course of business of the Borrower and the Restricted Subsidiaries, transferwhich consist of leasehold interests in the premises of such office, Dispositionfacility or other location, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office, facility or other location; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) such sale shall be on commercially reasonable prices and term in a bona fide arm’s length transaction;
(q) the lapse or abandonment (including failure to maintain) in the ordinary course of business of any registrations or applications for registration of any (i) intellectual property rights that are not necessary or desirable in the conduct of the business of the Borrower or any Restricted Subsidiaries, or (ii) immaterial intellectual property rights that in the good faith determination of the Borrower are no longer economically practicable or commercially desirable to maintain or use in the business of the Borrower and the Restricted Subsidiaries (taken as a whole);
(r) any Disposition (i) arising from foreclosure, casualty, condemnation, expropriation or any similar action or transfers by reason of eminent domain with respect to any property or other asset of the Borrower or any of its Restricted Subsidiaries or (ii) by reason of the exercise of termination rights under any lease, sublease, license, sublicense, concession or other agreement;
(s) any surrender or waiver of contractual rights or the settlement, release, recovery on or surrender of contractual rights or other claims of any kind;
(t) the discount or forgiveness of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable or Investments permitted under this Agreement, in each case in connection with the collection or compromise thereof;
(u) any Disposition of assets of the Borrower or any Restricted Subsidiary or sale or issuance of Equity Interests of any Restricted Subsidiary, which assets or Equity Interests so Disposed have an aggregate fair market value (as determined in good faith by the Borrower) of less than C$10,000,000 in the aggregate for any fiscal year;
(v) any grant in the ordinary course of business of any non-exclusive license of patents, trademarks, software, know-how, copyrights, or any other intellectual property rights, including, but not limited to, grants of franchises or non-exclusive licenses, franchise or non-exclusive license master agreements and/or area development agreements, or any Permitted Exclusive License;
(w) Dispositions contemplated on the Closing Date and set forth on Schedule 7.05(w);
(x) Dispositions required to be made to comply with the order of any Governmental Authority or applicable Laws;
(y) [reserved];
(z) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants;
(aa) [reserved];
(bb) de minimis amounts of equipment provided to employees;
(cc) the Borrower and any Restricted Subsidiary may (i) convert any intercompany Indebtedness to Equity Interests; (ii) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary and (iii) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of the Borrower (or any direct or indirect parent thereof) or any Subsidiary or any of their successors or assigns; and
(hdd) Dispositions in addition to the Dispositions permitted by clause (a) through clause (g) nature of this Section 7.05, Dispositions of property of Xxxxxxxxx asset swaps conducted on an arms-length basis with bona fide third parties unaffiliated with a Borrower or any SubsidiaryAffiliate of a Borrower; provided, including Equity Interests of that no such asset swap may be made at any Subsidiarytime that a Specified Default has occurred and is continuing; provided that such Dispositions consummated during the term any Disposition of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that any property pursuant to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesXxxxxxx 0.00(x), (ix), (x)(xxx), (x), (x), (x) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Dispositiondd), Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for no less than the fair market valuevalue of such property at the time of such Disposition as determined by the Borrower in good faith. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Term Loan Credit Agreement (GFL Environmental Holdings Inc.)
Dispositions. Xxxxxxxxx will notConvey, and will not cause sell, lease, transfer, assign, dispose of or otherwise make cash payments consisting of (collectively, “Transfer”), or permit any of its Subsidiaries toto Transfer, make all or any Disposition material part of its business or enter into any agreement to make any Dispositionproperty, except:
except for Transfers (a) Dispositions consisting of cash payments to trade creditors in the ordinary course of business; (b) of Inventory in the ordinary course of business, and non-exclusive licenses of Intellectual Property in connection therewith; (c) of worn-out, excess or obsolete Equipment; (d) permitted by Section 7.3; (e) in connection with Permitted Indebtedness, Permitted Liens and Permitted Investments; (f) of non-exclusive licenses for the use of the Intellectual Property of Borrower, or worn out property, whether now owned or hereafter acquiredany of Borrower’s Domestic Subsidiaries, in the ordinary course of business;
(b) Dispositions of inventory and business 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
connection with corporate collaborations; (g) the sale, assignment, transfer, Disposition, discount consisting of Permitted Licenses; or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having that is not otherwise permitted hereunder for cash consideration to Persons who are not Affiliates of Borrower if: (A) immediately prior to and immediately after giving effect to any such Disposition, there does not exist a book Default or an Event of Default; (B) the aggregate fair market value of all assets so sold by Borrower and its Subsidiaries does not exceed Three Hundred Seventy-Five Thousand Dollars ($375,000) in any fiscal year; and (C) the Net Proceeds of such Disposition, together with the Net Proceeds of any other Dispositions effected under Section 7.1(c) and the Net Proceeds of all Events of Loss, exceed the Threshold Amount in the aggregate for all such Dispositions and Events of Loss in any fiscal year, such Net Proceeds in excess of $25,000,000 the Threshold Amount for such fiscal year are: (1) except as otherwise permitted by Section 2.2(b)(iii), applied upon the receipt thereof by Borrower or any Subsidiary to the repayment of the Obligations; or (2) otherwise, used within ninety days of the receipt thereof by Borrower or any of its Subsidiaries to purchase property otherwise permitted hereunder; provided that a Responsible Officer of Borrower shall have notified Agent promptly after its determination to so apply or use the Net Proceeds and shall have certified the receipt of not less than fair market value for such property and the proper application of such Net Proceeds in accordance with this Section 7.1(h). Notwithstanding anything to the contrary contained in this Section 7.1, any Disposition pursuant to any of the foregoing subsections of this Section 7.1 shall be for not less than fair market value. Agent shall enter into a Non-Disturbance Agreement with the licensee of any Permitted License that any Loan Party grants pursuant to Section 7.1(g).
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, or immaterial property no longer useful or necessary to the business of Borrower and its Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and cash equivalents in the ordinary course of businessbusiness and sales, assignments, transfers or dispositions of accounts in the ordinary course of business for purposes of collection;
(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 Xxxxxxxxx Borrower to any of its wholly-owned Subsidiary Guarantors or by any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx Borrower or to a Wholly–Owned wholly-owned Subsidiary Guarantor; provided that if the transferor of Xxxxxxxxx such property is Borrower or (ii) to a joint venture Guarantor, the transferee thereof must either be Borrower or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)owned Guarantor;
(e) Dispositions permitted by Section 7.047.4;
(f) Dispositions non-exclusive licenses of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable immaterial IP Rights in the ordinary course of business or and non-exclusive licenses of IP Rights in the ordinary course of business solely in connection with cooperative agreements with third parties for further development of such IP Rights;
(g) subleases of leased properties no longer needed by Borrower and its Subsidiaries and not material to the collection or compromise thereofoperation of Borrower and its Subsidiaries; and
(h) in addition to the Dispositions not otherwise permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, hereunder if (i) at the time of any Disposition, no Default or Event of Default or Default shall have occurred and be continuing and exist or shall result from such Disposition, (ii) after giving effect to each the aggregate sales price of such Disposition, Xxxxxxxxx Disposition shall be paid in pro forma compliance with cash, and (iii) the covenants set forth proceeds from Dispositions under this clause (h) since the Closing Date shall not exceed $500,000 in Section 7.12 of this Agreementthe aggregate; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 (other than clause (d)) shall be for fair market value.
Appears in 1 contract
Samples: Credit Agreement (Quidel Corp /De/)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions permitted by Section 6.06;
(b) Dispositions of inventory (including food and beverage) 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) Loan Party to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)another Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions licenses or sublicenses of Cash Equivalents and Eligible Investments IP Rights in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount leases or forgiveness sub-leases of accounts receivable real estate by any Loan Party or among Loan Parties in the ordinary course of business or in connection consistent with the collection or compromise thereof; andpast practices;
(h) in addition to the Dispositions Liens permitted under Section 7.01 hereof, Investments permitted under Section 7.02 and Restricted Payments permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that 7.06 hereof to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, constituting Dispositions;
(i) Dispositions of surplus or unused property or equipment, whether now owned or hereafter acquired, in the ordinary course of business consistent with past practices;
(j) so long as no Default or Event of Default is then existing or would result therefrom, Dispositions by the Borrower or any of its Subsidiaries of assets of underperforming (including Restaurants with Net Restaurant Operating Profit of less than $100,000), inactive or closed Restaurants or of Restaurants in connection with the franchising thereof, in each case, together with related buildings, land and equipment; provided that the Net Cash Proceeds received from such Dispositions shall be subject to Section 2.06(e)(i);
(k) Dispositions by the Borrower or any of its Subsidiaries of property pursuant to sale-leaseback transactions; provided that the Net Cash Proceeds received from such Dispositions shall be subject to Section 2.06(e)(i);
(l) Dispositions (without recourse) of accounts receivables in connection with the good faith compromise or collections thereof in the ordinary course of business; and
(m) the Borrower and its Subsidiaries may enter into agreements for their own Disposition, so long as a condition of such agreement and Disposition is that either (x) (i) the Aggregate Commitments shall have occurred and be continuing been terminated and (ii) after giving effect the Borrower shall have (A) paid the Obligations in full in cash, (B) cash collateralized the Letters of Credit (or such Letters of Credit shall have terminated or expired) and (C) cash collateralized all Swap Contracts (or entered into other satisfactory arrangements) or (y) in the case of any agreement, the Requisite Lenders shall have consented thereto and a condition to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with consummation thereof is satisfaction of the covenants conditions set forth in Section 7.12 of this Agreementthe foregoing clause (x); provided, however, that (a) any Disposition pursuant to clauses (ai) through (hk) of property having a book value in excess of $25,000,000 shall be for fair market value, (b) the aggregate, cumulative proceeds after the Closing Date to any date of determination hereunder of all Dispositions permitted pursuant to clauses (i) through (k) shall not exceed $20,000,000 (plus the proceeds of Dispositions the proceeds of which are used to reinvest rather than repay loans pursuant to Section 2.06(e)(i) and excluding Dispositions pursuant to clause (j) above) at all times, (c) at least 75% of the consideration received in connection with Dispositions permitted pursuant to clauses (j) and (k) shall be in the form of cash, cash equivalents or short term marketable securities and shall be received upon consummation of such Dispositions, (d) with respect to any non-cash proceeds received with respect to Disposition permitted pursuant to clauses (j) and (k), the Loan Parties shall take all steps necessary to grant to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a valid first priority perfected security interest (subject to Liens permitted by Section 7.01) in such proceeds as Collateral for the Obligations, pursuant to the Security Documents and the Administrative Agent shall release the assets being disposed in accordance with Section 9.01(a), and (e) to the extent that any Disposition is of an Equity Interest of a Subsidiary, such sale shall be of all of the Equity Interests of such Subsidiary owned by the Borrower and its Subsidiaries.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyproperty in the ordinary course of business, or property no longer used or useful in the business of the Borrower or such Subsidiary, in each case whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Cash Equivalents in the ordinary course of business;
(c) Dispositions of equipment or real property other than through a lease transaction 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 or to Indebtedness incurred to acquire such replacement property; and Dispositions of equipment or real property through a lease transaction to the extent that such lease is on fair and reasonable terms in an arm’s-length transaction;
(d) Dispositions of property by Xxxxxxxxx any Subsidiary to the Borrower or any other Subsidiary of Xxxxxxxxx or by the Borrower to any Subsidiary; provided that any Disposition involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 7.08 (iexcluding clause (b) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(hthereof);
(e) (i) Dispositions permitted by Section 7.047.04 and (ii) Dispositions for fair market value in a transaction in exchange for which an Investment permitted by Section 7.03 (other than Section 7.03(s)) is received;
(f) Dispositions licenses or sublicenses of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable IP Rights in the ordinary course of business or in connection and substantially consistent with the collection or compromise thereof; andpast practice;
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default or Event of Default shall have occurred and occurred, be continuing and (ii) after giving effect to each or would result from such Disposition, Xxxxxxxxx shall be ;
(h) Dispositions of Permitted Securitization Transferred Assets pursuant to any Permitted Receivables Facility;
(i) Dispositions of accounts receivable in pro forma compliance connection with the covenants set forth compromise, settlement or collection thereof consistent with past practice;
(j) Dispositions of property to the extent that such property constitutes an Investment permitted by Section 7.03(d)(ii), (l) or (m) or another asset received as consideration for the Disposition of any asset permitted by this Section 7.05;
(k) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary; and
(l) Dispositions made in Section 7.12 order to consummate the Reorganization and Dispositions of this assets constituting the Valvoline Business (as defined in the Existing Credit Agreement); provided, however, that any of the foregoing Dispositions (other than any Disposition pursuant to clauses clause (a), (d), (e)(i), (k) through or (hl) of property having a book value in excess of $25,000,000 this Section 7.05) shall be for fair market value, as determined reasonably and in good faith by, as the case may be, the Borrower or the applicable Subsidiary.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, property and Dispositions in the ordinary course of businessbusiness of property that is no longer used or useful in the conduct of the business of the Borrower or any Restricted Subsidiary;
(b) Dispositions of inventory and 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 Xxxxxxxxx the Borrower or any Restricted Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is the Borrower or (ii) to a joint venture Guarantor, the transferee thereof must either be the Borrower or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Guarantor;
(e) Liens permitted by Section 7.01, Investments permitted by Section 7.02, Dispositions permitted by Section 7.04, and Restricted Payments permitted by Section 7.06;
(f) Dispositions leases, subleases, licenses, sublicenses, easements, rights of Cash Equivalents and Eligible Investments way or similar rights or encumbrances in each case in the ordinary course of businessbusiness and that do not materially interfere with the business of the Borrower or its Restricted Subsidiaries;
(g) liquidations or other dispositions of cash and cash equivalents;
(h) Dispositions of Property (i) resulting from the sale, assignment, transfer, Disposition, discount condemnation thereof or forgiveness (ii) that has suffered a casualty (constituting a total loss or constructive total loss of such Property) upon or after receipt of the insurance proceeds of such casualty;
(i) sales or discounts of overdue accounts receivable in the ordinary course of business or business, in connection with the compromise or collection or compromise thereof; and;
(hj) in addition Dispositions to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx EnLink MLP or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that (i) after giving effect to the extent the property subject to any such Disposition represents more than five percent (5%) of on a pro forma basis, the total assets of Xxxxxxxxx and its SubsidiariesBorrower would be in compliance with the covenants set forth in Section 7.13, (iii) no Default or Event of Default shall have occurred and be continuing at the time of such Disposition or would result therefrom, and (iiiii) such Disposition shall be approved by EnLink Manager’s conflicts committee;
(k) Dispositions of the Equity Interests in, or property of, E2 and/or E2 Appalachian; provided that (i) after giving effect to each such DispositionDisposition on a pro forma basis, Xxxxxxxxx shall the Borrower would be in pro forma compliance with the covenants set forth in Section 7.12 7.13, (ii) no Default or Event of this Agreement; providedDefault shall have occurred and be continuing at the time of such Disposition or would result therefrom, however, that any and (iii) such Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value; and
(l) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) after giving effect to such Disposition on a pro forma basis, the Borrower would be in compliance with the covenants set forth in Section 7.13, (iii) the aggregate book value of all property Disposed of in reliance on this clause (l) in any fiscal year shall not exceed $175,000,000, and (iv) such Disposition shall be for fair market value and for at least 75% cash consideration.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not(a) No Credit Party shall, and will not cause or nor shall it permit any of its Subsidiaries to, make sell, convey, license or otherwise transfer any Disposition or enter into any agreement to make any Disposition, except:
of its assets except that the Borrower and its Subsidiaries may (ai) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, sell Inventory in the ordinary course of business;
; (bii) Dispositions sell, convey, or otherwise transfer of inventory Equipment that is (i) obsolete, worn out, depleted or uneconomic and disposed of in the ordinary course of business;, or (ii) contemporaneously replaced by Equipment of at least comparable value and use; provided that no Event of Default shall exist or shall result from such sale, conveyance, or transfer; (iii) consummate the Specified Dispositions; (iv) consummate the Schlumberger Receivables Transaction; (v) license or otherwise dispose of Intellectual Property (as such term is defined in the Security Agreement) pursuant to the terms of the Security Agreement; and (vi) sell, convey or otherwise transfer assets so long as the Borrower makes any prepayments of the Term Loans with the Net Cash Proceeds thereof to the extent required under Section 2.5(c)(ii).
(cb) Dispositions No Credit Party shall, nor shall it permit any of equipment its Subsidiaries to, sell or real property otherwise dispose of any of its ownership interest in any of its Subsidiaries, or in any manner rearrange its business structure as it exists on the date of this Agreement except that the Borrower and its Subsidiaries may (i) create or acquire new Subsidiaries if such new Subsidiaries comply with Section 5.6 and such transactions otherwise comply with the terms of this Agreement, (ii) transfer, sell or otherwise dispose of such ownership interests in connection with any merger or consolidation permitted under Section 6.7(a) or any dissolution or liquidation of any Subsidiary of the Borrower to the extent that (i) the Borrower has reasonably determined that such property Subsidiary is exchanged for credit against no longer useful in its business so long as the purchase price Borrower makes any prepayments of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to Term Loans with the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx Net Cash Proceeds thereof to the extent constituting an Investment permitted by required under Section 7.03(h2.5(c)(ii);
, (eiii) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests dispose of any Subsidiary; of its ownership interests in any of its Subsidiaries provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing exist or shall result from such sale, conveyance, or transfer; (iv) consummate the Specified Dispositions; and (iiv) after giving effect to each such Dispositionsell, Xxxxxxxxx shall be in pro forma compliance convey or otherwise transfer assets so long as the Borrower makes any prepayments of the Term Loans with the covenants set forth in Net Cash Proceeds thereof to the extent required under Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value2.5(c)(ii).
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a1) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property, whether now owned surplus property (including for purposes of recycling) in the ordinary course of business or hereafter acquired, Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(2) Dispositions of inventory and goods held for sale in the ordinary course of business;
(b3) Dispositions of inventory and in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (ia) such property is exchanged for credit against the purchase price of similar replacement property or (iib) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;
(d4) Dispositions of property by Xxxxxxxxx to the Borrower or any Subsidiary a Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Loan Party (ia) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (iib) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment, such Investment permitted by must be a Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.03(h6.04 (other than Section 6.04(14));
(e5) Dispositions consisting of Investments permitted by under Section 7.046.04 (other than Section 6.04(14)), transactions permitted under Section 6.05 (other than Section 6.05(5)) or Restricted Payments permitted under Section 6.07 (other than Section 6.07(4)) or consisting of Permitted Liens;
(f6) Dispositions of property pursuant to Sale Leaseback Transactions, provided that (i) no Event of Default has occurred and is continuing or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing) and (ii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(7) Dispositions of Cash Equivalents and Eligible (or Investments in that were Cash Equivalents when made); provided, that such Disposition shall be for no less than the ordinary course fair market value of businesssuch property at the time of such Disposition;
(g) 8) leases, subleases, licenses or sublicenses (including the saleprovision of software under an open source license), assignment, transfer, Disposition, discount or forgiveness of accounts receivable 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, provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(9) Dispositions of property subject to any Casualty Event;
(10) Dispositions; provided that
(a) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), no Event of Default has occurred and is continuing or would result therefrom; and
(b) with respect to any Disposition pursuant to this clause (10) for a purchase price in excess of the greater of (i) $25.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (b) each of the following will be deemed to be cash,
(i) any liabilities (as shown on the Borrower’s or any Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or any Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition;
(iii) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (A) $25.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iv) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (or, if earlier, the definitive documentation or other Contractual Obligation with respect to such Disposition is entered into by the Borrower or any Restricted Subsidiary (as applicable); ; provided further that if any such Disposition pursuant to this clause (10) decreases the Borrowing Base by an amount equal to or greater than $25.0 million after giving effect to such Disposition on a Pro Forma Basis, the Borrower shall deliver a pro forma Borrowing Base Certificate prior to the date of such Disposition (or such later date as the Administrative Agent may agree, in its reasonable discretion);
(11) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements among, the joint venture parties set forth in joint venture or similar agreements or arrangements;
(12) Dispositions or discounts of accounts receivable and related assets in connection with the collection or compromise thereof; and;
(h13) Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;
(14) Dispositions constituting any exchange of like property (excluding any boot thereon) for use in addition any business conducted by the Borrower or any of the Restricted Subsidiaries, to the Dispositions permitted by clause extent allowable under Section 1031 of the Code (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarycomparable or successor provision); provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject being transferred constitutes Collateral, such replacement property shall constitute Collateral;
(15) the unwinding of any Hedge Agreement;
(16) Dispositions of assets in connection with the closing or sale of a facility, including Dispositions of inventory, fee or leasehold interests in the premises of such facility, equipment and fixtures located at such premises, and the books and records relating to any the operations of such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx facility; provided that as to each and its Subsidiariesall such sales and closings, (ia) no Default or Event of Default shall have occurred and be continuing or shall result therefrom and (b) such Dispositions shall be for no less than fair market value at the time of such Disposition;
(17) the sale, assignment or other transfer of Securitization Assets to (a) a Receivables Subsidiary in a Qualified Receivables Financing or (b) any other Person in a Qualified Receivables Factoring;
(18) (i) settlement of litigation concerning Intellectual Property Rights, or (ii) the lease, sublease, license or sublicense of Intellectual Property Rights outside the United States or (iii) the lapse, abandonment, discontinuance of the use or maintenance of any Intellectual Property Rights, in each case of (i), (ii) and (iii), if the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that it would not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(19) Disposition of any property or asset with a fair market value not to exceed either (a) the greater of (i) $10.0 million and (ii) after giving effect an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, Xxxxxxxxx shall with respect to any transaction or series of related transactions or (b) the greater of (i) $50.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, in the aggregate for all such transactions in any fiscal year;
(20) Disposition of assets acquired in a Permitted Investment that the Borrower determines will not be used or useful in pro forma compliance the business of the Borrower and its Restricted Subsidiaries;
(21) Dispositions of pipeline, marketed or other assets required by regulatory authorities in connection with the covenants set forth Transactions, any Permitted Acquisition or other investment permitted hereunder;
(22) any Disposition(s) in Section 7.12 connection with licensing of this AgreementIntellectual Property Rights to any Non-Loan Party Restricted Subsidiary or Non-Loan Party Restricted Subsidiaries in connection with bona fide tax planning purposes as determined in good faith by the Borrower; provided, howeverthat the Collateral and the Lenders are not adversely affected in any material respect by such Disposition(s);
(23) Dispositions, including leases, subleases, licenses or sublicenses, of Products in Development in jurisdictions outside the United States; provided, that any Disposition pursuant to clauses (a) through such disposition does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole and (hb) of property having a book value in excess of $25,000,000 such Disposition shall be for no less than the fair market valuevalue of such property at the time of such Disposition;
(24) the Transactions; and
(25) the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off. To the extent any Collateral is Disposed of as expressly permitted (or not prohibited) by this Section 6.05 to any Person other than a Loan Party, such Collateral will be Disposed of free and clear of the Liens created by the Loan Documents, and, without limiting, and subject to, the provisions of Section 9.11, the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower or deemed appropriate in order to evidence or effect the foregoing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make any Disposition, except:10.1 Dispositions by the Purchaser. -----------------------------
(a) Dispositions In the event that, prior to an IPO, the Purchaser shall desire to sell or otherwise transfer any of obsolete the Preferred Shares, the Purchaser shall give the Company written notice of its desire to sell such securities, which notice shall specify (i) the number of such securities the Purchaser desires to sell, (ii) the price at, and the terms and conditions on, which the Purchaser desires to sell such securities, and (iii) the identity of all Persons whom the Purchaser intends to contact in connection with the proposed sale (the "Contact List"), and the Purchaser shall offer to sell such securities to the ------------ Company at such price and on such terms and conditions. If, within thirty (30) days of receiving such notice, the Company does not accept such offer in writing, the Purchaser shall be free for a period of six months to enter into a definitive agreement to sell such securities to any Person on the Contact List at a price not less than the price offered to the Company, and on terms and conditions substantially equivalent to those offered to the Company. If the Purchaser does not sell such securities in such a manner within such six-month period, the Purchaser may not thereafter sell or worn out propertytransfer such securities without again complying with the provisions of the first sentence of this Section 10.1(a). If, whether now owned or hereafter acquired, within the thirty-day period specified in the ordinary course of business;preceding sentence, the Company does accept such offer in writing, then the Company shall purchase such securities as promptly as is reasonably practicable, but in no event later than thirty (30) days following such acceptance. If, after such acceptance, the Company for whatever reason fails to purchase such securities on or prior to the date specified in the preceding sentence, the Purchaser may, among other remedies available to it, sell such securities to any Person on the Contact List at any price and on any terms.
(b) Dispositions of inventory and Notwithstanding anything in the ordinary course of business;
(c) Dispositions of equipment or real property this Section 10.1 to the extent that contrary, the Purchaser may, at any time and from time to time, sell or otherwise transfer Common Stock or Preferred Shares (i) such property is exchanged for credit against pursuant to an exchange offer or a tender offer not opposed by a majority of the purchase price Company's Board of similar replacement property or Directors, (ii) pursuant to any all cash tender offer made by any Person for all of the proceeds of such Disposition are reasonably promptly applied issued and outstanding Common Stock, (iii) pursuant to the purchase price of such replacement property;
Registration Rights Agreement, (d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (iiv) to Xxxxxxxxx any of the Purchaser's Affiliates, or (v) to the Purchaser's limited partners, if any, pursuant to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreementrata distribution; provided, however, that any Disposition pursuant to clauses Affiliates (a) through (hor limited -------- ------- partners, if any) of property having a book value the Purchaser to which such securities are transferred shall agree to be bound by all of the transfer restrictions set forth in excess this Section 10.1.
(c) Except as otherwise provided in Section 10.1(b), any securities transferred by the Purchaser shall not thereafter be subject to the provisions of $25,000,000 shall be for fair market valuethis Section 10.1.
Appears in 1 contract
Samples: Securities Purchase Agreement (Unwired Telecom Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, or immaterial property no longer useful or necessary to the business of Borrower and its Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and cash equivalents in the ordinary course of businessbusiness and sales, assignments, transfers or dispositions of accounts in the ordinary course of business for purposes of collection;
(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 Xxxxxxxxx Borrower to any of its wholly-owned Subsidiary Guarantors or by any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx Borrower or to a Wholly–Owned wholly-owned Subsidiary Guarantor; provided that if the transferor of Xxxxxxxxx such property is Borrower or (ii) to a joint venture Guarantor, the transferee thereof must either be Borrower or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)owned Guarantor;
(e) Dispositions permitted by Section 7.047.4;
(f) Dispositions non-exclusive licenses of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable immaterial IP Rights in the ordinary course of business or and non-exclusive licenses of IP Rights in the ordinary course of business solely in connection with cooperative agreements with third parties for further development of such IP Rights;
(g) subleases of leased properties no longer needed by Borrower and its Subsidiaries and not material to the collection operation of Borrower and its Subsidiaries;
(h) Dispositions not otherwise permitted hereunder if (i) at the time of any Disposition, no Event of Default or compromise thereofDefault shall exist or shall result from such Disposition, (ii) the aggregate sales price of such Disposition shall be paid in cash, and (iii) the proceeds from Dispositions under this clause (h) since the Closing Date shall not exceed $500,000 in the aggregate; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; Permitted Sale. provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 (other than clause (d)) shall be for fair market value.
Appears in 1 contract
Samples: Credit Agreement (Quidel Corp /De/)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a1) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property, whether now owned surplus property (including for purposes of recycling) in the ordinary course of business or hereafter acquired, Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(2) Dispositions of inventory and goods held for sale in the ordinary course of business;
(b3) Dispositions of inventory and in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (ia) such property is exchanged for credit against the purchase price of similar replacement property or (iib) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;
(d4) Dispositions of property by Xxxxxxxxx to the Borrower or any Subsidiary a Restricted Subsidiary; provided, that if the transferor of Xxxxxxxxx such property is a Loan Party (ia) to Xxxxxxxxx or to the transferee thereof must be a Wholly–Owned Subsidiary of Xxxxxxxxx Loan Party or (iib) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment, such Investment permitted by must be a Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.03(h6.04 (other than Section 6.04(14));
(e5) Dispositions consisting of Investments permitted by under Section 7.046.04 (other than Section 6.04(14)), transactions permitted under Section 6.05 (other than Section 6.05(5)) or Restricted Payments permitted under Section 6.07 (other than Section 6.07(4)) or consisting of Permitted Liens;
(f6) Dispositions of property pursuant to Sale Leaseback Transactions, provided that (i) no Event of Default has occurred and is continuing or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing) and (ii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(7) Dispositions of Cash Equivalents and Eligible (or Investments in that were Cash Equivalents when made); provided, that such Disposition shall be for no less than the ordinary course fair market value of businesssuch property at the time of such Disposition;
(g) 8) leases, subleases, licenses or sublicenses (including the saleprovision of software under an open source license), assignment, transfer, Disposition, discount or forgiveness of accounts receivable 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, provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(9) Dispositions of property subject to any Casualty Event;
(10) Dispositions; provided that
(a) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), no Event of Default has occurred and is continuing or would result therefrom; and
(b) with respect to any Disposition pursuant to this clause (10) for a purchase price in excess of the greater of (i) $25.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (b) each of the following will be deemed to be cash,
(i) any liabilities (as shown on the Borrower’s or any Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or any Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition;
(iii) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (A) $25.0 million and (B) an amount equal to the Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iv) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (or, if earlier, the definitive documentation or other Contractual Obligation with respect to such Disposition is entered into by the Borrower or any Restricted Subsidiary (as applicable) (this clause (10), the “General Asset Sale Basket”);
(11) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements among, the joint venture parties set forth in joint venture or similar agreements or arrangements;
(12) Dispositions or discounts of accounts receivable and related assets in connection with the collection or compromise thereof; and;
(h13) Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;
(14) Dispositions constituting any exchange of like property (excluding any boot thereon) for use in addition any business conducted by the Borrower or any of the Restricted Subsidiaries, to the Dispositions permitted by clause extent allowable under Section 1031 of the Code (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiarycomparable or successor provision); provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject being transferred constitutes Collateral, such replacement property shall constitute Collateral;
(15) the unwinding of any Hedge Agreement;
(16) Dispositions of assets in connection with the closing or sale of a facility, including Dispositions of inventory, fee or leasehold interests in the premises of such facility, equipment and fixtures located at such premises, and the books and records relating to any the operations of such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx facility; provided that as to each and its Subsidiariesall such sales and closings, (ia) no Default or Event of Default shall have occurred and be continuing or shall result therefrom and (b) such Dispositions shall be for no less than fair market value at the time of such Disposition;
(17) the sale, assignment or other transfer of Securitization Assets to (a) a Receivables Subsidiary in a Qualified Receivables Financing or (b) any other Person in a Qualified Receivables Factoring;
(18) (i) settlement of litigation concerning Intellectual Property Rights, or (ii) the lease, sublease, license or sublicense of Intellectual Property Rights outside the United States or (iii) the lapse, abandonment, discontinuance of the use or maintenance of any Intellectual Property Rights, in each case of (i), (ii) and (iii), if the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that it would not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(19) Disposition of any property or asset with a fair market value not to exceed either (a) the greater of (i) $10.0 million and (ii) after giving effect an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, Xxxxxxxxx shall with respect to any transaction or series of related transactions or (b) the greater of (i) $50.0 million and (ii) an amount equal to the Equivalent Percentage of the amount in the preceding clause (i) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Disposition, in the aggregate for all such transactions in any fiscal year;
(20) Disposition of assets acquired in a Permitted Investment that the Borrower determines will not be used or useful in pro forma compliance the business of the Borrower and its Restricted Subsidiaries;
(21) Dispositions of pipeline, marketed or other assets required by regulatory authorities in connection with the covenants set forth Transactions, any Permitted Acquisition or other investment permitted hereunder;
(22) any Disposition(s) in Section 7.12 connection with licensing of this AgreementIntellectual Property Rights to any Non-Loan Party Restricted Subsidiary or Non-Loan Party Restricted Subsidiaries in connection with bona fide tax planning purposes as determined in good faith by the Borrower; provided, howeverthat the Collateral and the Lenders are not adversely affected in any material respect by such Disposition(s);
(23) Dispositions, including leases, subleases, licenses or sublicenses, of Products in Development in jurisdictions outside the United States; provided, that any Disposition pursuant to clauses (a) through such disposition does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole and (hb) of property having a book value in excess of $25,000,000 such Disposition shall be for no less than the fair market valuevalue of such property at the time of such Disposition;
(24) the Transactions; and
(25) the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off. To the extent any Collateral is Disposed of as expressly permitted (or not prohibited) by this Section 6.05 to any Person other than a Loan Party, such Collateral will be Disposed of free and clear of the Liens created by the Loan Documents, and, without limiting, and subject to, the provisions of Section 9.11, the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower or deemed appropriate in order to evidence or effect the foregoing.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Impax Laboratories, LLC)
Dispositions. Xxxxxxxxx will notConvey, and will not cause sell, lease, transfer, assign, dispose of, license (collectively, “Transfer”), or permit any of its Subsidiaries toto Transfer, make all or any Disposition part of its business or enter into any agreement to make any Dispositionproperty, except:
except for Transfers (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, Inventory in the ordinary course of business;
; (b) Dispositions of inventory and in the ordinary course of business;
worn-out or obsolete Equipment; (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;
in connection with Permitted Liens, Permitted Investments and Permitted Licenses; (d) Dispositions of property by Xxxxxxxxx cash or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business and pursuant to transactions not prohibited by this Agreement; (e) Transfers to Borrower or any of its Subsidiaries that are co-Borrowers or Guarantors from Borrower or any of its Subsidiaries that are co-Borrowers or Guarantors; (f) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection or compromise thereof; and
(g) any abandonment, cancellation, non-renewal or discontinuance of use or maintenance of immaterial Intellectual Property (or rights relating thereto) of Borrower and its Subsidiaries that Borrower reasonably determines in good faith is no longer economically practicable to maintain or useful in the ordinary course of business and that is not adverse to the rights, remedies and benefits available to, or conferred upon, Lender under any Loan Document in any material respect or otherwise does not materially diminish the value of the Collateral securing the Obligations; (h) in addition to the Dispositions permitted by clause granting of Consulting Royalties; (ai) through clause (g) the sale or issuance of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any SubsidiarySubsidiary of Borrower to any Loan Party or to any other Subsidiary of Borrower permitted in Section 7.2; provided that (j) other Transfers not involving any material Intellectual Property (or rights relating thereto) and not otherwise permitted under this Section 7.1 in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000) in any fiscal year; and (k) other Transfers in which such Dispositions consummated during the term of this Agreement Loan Party will receive cash proceeds in the aggregate do not exceed twentyan amount equal to no less than seventy-five percent (2575%) of all Transfer consideration (fixed or contingent) paid or payable to such Loan Party or Subsidiary, but only so long as, unless otherwise waived by Collateral Agent in its sole discretion, the total assets net cash proceeds of Xxxxxxxxx such Transfer are utilized to repay or prepay, in whole or in part, Indebtedness to Lender under and its Subsidiaries; provided further that to in accordance with this Agreement and the extent other Loan Documents. For the property subject to any such Disposition represents more than five percent (5%) avoidance of the total assets doubt, none of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through the sale of any Permitted Convertible Indebtedness, (hb) the sale of property having any Warrant Transaction, (c) the purchase of any Bond Hedge Transaction or (d) the performance by Borrower of its obligations under any Permitted Convertible Indebtedness, any Warrant Transaction or any Bond Hedge Transaction (including the settlement or termination of any Bond Hedge Transaction or Warrant Transaction) shall constitute a book value in excess of $25,000,000 shall be for fair market valueTransfer.
Appears in 1 contract
Dispositions. Xxxxxxxxx will notConvey, and will not cause sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”), or permit any of its Subsidiaries toto Transfer, make all or any Disposition part of its business or enter into any agreement to make any Dispositionproperty, except:
except for Transfers (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, Inventory in the ordinary course of business;
; (b) Dispositions of inventory and worn-out or obsolete Equipment that is, in the ordinary course reasonable judgment of business;
(c) Dispositions of equipment Borrower or real property such Subsidiary, no longer economically practicable to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property maintain or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable useful in the ordinary course of business of Borrower or such Subsidiary; (c) consisting of Permitted Liens and Permitted Investments; (d) consisting of the sale or issuance of any stock of Borrower permitted under Section 7.2 of this Agreement; (e) consisting of Borrower’s or such Subsidiary’s use or transfer of money or Cash Equivalents in the ordinary course of its business for the payment of ordinary course business expenses in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (f) consisting of the sale of fixed assets and property which is, as of the date of this Agreement, in the process of being sold by a Subsidiary of Borrower pursuant to a letter of intent dated February 4, 2019, as previously disclosed to Bank; (g) consisting of cash payments in respect of earn-outs, working capital adjustments and/or dividends under that certain Plan of Merger, dated as of December 2, 2018, by and among Borrower, New Age Health Sciences Holdings, Inc. and Morinda Holdings, Inc., including, without limitation, dividends payable pursuant to Borrower’s outstanding shares of Series D Convertible Preferred Stock, so long as the Morinda Adjusted EBITDA for the fiscal year ended December 31, 2019 is at least $17,000,000; provided however, if the Morinda Adjusted EBITDA for the fiscal year ended December 31, 2019 is less than $17,000,000 such cash payments may be made in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through foregoing so long as such payments under this clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries), (i) no Default are funded with proceeds from sales or Event issuances of Default shall have occurred and be continuing Qualified Stock and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with do not exceed the covenants set forth in Section 7.12 amount of this Agreement; provided, however, that any Disposition funds received pursuant to clauses (a) through such sales or issuances of Qualified Stock; (h) consisting of the issuance of Qualified Stock of Borrower in satisfaction of Borrower’s obligations under the foregoing clause (g); (i) of non-exclusive licenses for the use of the property having a book value of Borrower or its Subsidiaries in excess the ordinary course of $25,000,000 shall be for fair market valuebusiness and (j) consisting of the issuance, sale or disposition (including, without limitation, pursuant to an “at-the-market” offering) of any Qualified Stock, Stock Equivalents or Qualified Stock issuable upon conversion or exercise of any Stock Equivalents (including, without limitation, stock options and convertible notes).
Appears in 1 contract
Samples: Loan and Security Agreement (New Age Beverages Corp)
Dispositions. Xxxxxxxxx will notMake any Disposition of any material portion of the assets of the Parent, and will not cause the Borrower or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make any Dispositiontheir Subsidiaries, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 (i) of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary wholly-owned Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Guarantor, the transferee thereof must either be the Borrower or a Guarantor and (ii) to a joint venture or to a non Whollyby Excluded Non-Wholly Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Subsidiaries;
(e) Dispositions permitted by Section 7.04;
(f) in addition to subsection (g) following, so long as no Default shall exist or would result from each such Disposition, (i) Dispositions of Cash Equivalents property in connection with Like Kind Exchanges for a Station acquired in connection with a Permitted Acquisition in accordance with the terms of Section 7.07 and Eligible Investments (ii) Dispositions of property in connection with Station swaps or exchanges, in each case of Stations acquired in connection with a Permitted Acquisition in accordance with the ordinary course terms of business;Section 7.07, provided that, notwithstanding the foregoing, if at any time in connection with a (A) Like Kind Exchange after a property has been Acquired or Disposed of by the Borrower or any of its Subsidiaries in connection with such Like Kind Exchange there shall exist a Default, such Loan Party shall be permitted to consummate the Like Kind Exchange despite the existence of such Default, and (B) swap or exchange described in subsection (ii) preceding, after a property has been Acquired or Disposed of by the Borrower or any of its Subsidiaries in connection with such swap or exchange there shall exist a Default, and such Loan Party has entered into a contractual arrangement binding such Loan Party to consummate such swap or exchange with an unaffiliated third party prior to the existence of such Default, such Loan Party shall be permitted to consummate such swap or exchange despite the existence of such Default; and
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause subsection (af) through clause (g) of this Section 7.05preceding, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, so long as (i) no Default shall exist or Event would result from each such Disposition, (ii) the Borrower has complied with the provisions of Default shall have occurred and be continuing Section 2.04(b)(ii) with respect to each such Disposition and (iiiii) after giving effect to each such Disposition, Xxxxxxxxx shall be in at least 80% of Consolidated Operating Cash Flow, on a pro forma compliance with basis, will be derived from broadcasting, the covenants set forth Borrower may make Dispositions of assets representing not more than 25% of Consolidated Operating Cash Flow (measured for the most recently completed four fiscal quarters) in Section 7.12 the aggregate for all such asset Dispositions over the term of this Agreement; provided. For the avoidance of doubt, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 operating cash flow from assets sold shall be calculated based on the operating cash flow for fair market valuethe four fiscal quarters preceding the date of sale of the assets sold for all assets sold cumulatively from the Closing Date through the date of determination, measured against Consolidated Operating Cash Flow for the most recently completed four fiscal quarters of the Parent.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:except (without duplication):
(a) Dispositions of obsolete obsolete, surplus or worn out propertyproperty or property that is no longer used or useful for the business of the Parent, the Borrower or any Subsidiary, whether now owned or hereafter acquired, in each case in the ordinary course of business;
(b) Dispositions of inventory and Cash Equivalents, charters of vessels, and leases of equipment, in each case in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent Parent, the Borrower or a Wholly Owned Subsidiary; provided that (i) if the transferor of such property is exchanged for credit against the purchase price of similar replacement property Parent, the Borrower, or (ii) a Subsidiary Guarantor, the proceeds of such Disposition are reasonably promptly applied to transferee thereof must either be the purchase price of such replacement propertyParent, the Borrower or a Subsidiary Guarantor;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04, and (ii) Restricted Payments permitted by Section 7.06;
(e) [Intentionally left blank];
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business[Intentionally left blank];
(g) [Intentionally left blank];
(h) the sale, assignment, transfer, Disposition, discount or forgiveness Disposition of accounts receivable assets received pursuant to Section 7.02(e)(ii);
(i) the 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 in connection 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 Collateral, constituting non-cash contributions to a joint venture to the extent such Investment is permitted pursuant to Section 7.02(g) (for the purpose of determining compliance with the collection or compromise thereof; andlimitations 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);
(hm) The exchange of any vessel (other than a vessel that is subject to a Vessel Mortgage) for any vessel of equivalent value (including any cash or Cash Equivalents necessary in addition order to the Dispositions permitted by clause achieve an exchange of equivalent value);
(an) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx The Parent or any Subsidiary may Dispose of (including by means of a merger of such Subsidiary, including ) the Equity Interests of any Subsidiarya Subsidiary (other than the Borrower); provided that (i) no less than all of the Equity Interests of the Parent and its Subsidiaries in the applicable Subsidiary are Disposed of concurrently, (ii) all such Dispositions consummated during shall be made for fair market value and (iii) the term Subsidiary so Disposed of shall not, on an aggregate basis with all other Subsidiaries Disposed of pursuant to this Agreement in the Section 7.05(n), account for (y) assets having an aggregate do not exceed twenty-five percent (25%) book value of greater than 5% of the consolidated total assets of Xxxxxxxxx the Parent and its Subsidiaries; provided further that to Subsidiaries or (z) Consolidated EBITDA exceeding 5% of the extent Consolidated EBITDA of the Parent, in each case determined as of the end of the fiscal quarter most recently ended;
(o) The granting of any Lien permitted hereunder and dispositions of property subject to any such Disposition represents more Lien that is transferred to the lienholder or its designee in satisfaction or settlement of such lienholder’s claim;
(p) Dispositions of assets (other than five percent (5%a vessel that is subject to a Vessel Mortgage) of the total assets of Xxxxxxxxx and its Subsidiaries, not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or Event of Default shall have occurred and be continuing would result from such Disposition and (ii) the aggregate book value of all assets Disposed of in reliance on this clause (p) from and after giving effect to each such Dispositionthe Closing Date, Xxxxxxxxx shall be in pro forma compliance together with the covenants set forth in Section 7.12 aggregate book value of this Agreementthe assets of all Subsidiaries Disposed of pursuant to clause (n) above since the Closing Date, shall not exceed 10% of the total book value of all assets of the Parent and its Subsidiaries as of the end of the most recent fiscal quarter of the Parent; provided, however, that any Disposition pursuant to clauses (a) through (hd), (j)(ii), (m), (n) of property having a book value in excess of $25,000,000 and (p) shall be for fair market value. For purposes of determining compliance with this Section 7.05, the fair market value of any property Disposed of for 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 portion of the consideration, as reasonably determined by the Parent in good faith.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any DispositionDisposition (other than agreements making the applicable Disposition subject to the prior payment in full of the Obligations and termination of this Agreement or to being consented to by the Required Lenders), except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 property, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty or (iii) the board of directors or senior management of the Borrower or such Restricted Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Restricted Subsidiary;
(d) Dispositions by the Borrower and its Restricted Subsidiaries of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) pursuant to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollysale-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)leaseback transactions;
(e) Dispositions permitted by Section SECTION 7.04;
(f) Dispositions dispositions of Cash Equivalents and Eligible Investments in the ordinary course of businessAccounts Receivable pursuant to a Permitted Receivables Purchase Facility;
(g) Disposition of real property near the salelocation of the Borrower's City of Industry plant, assignment, transfer, Disposition, discount or forgiveness PROVIDED that the aggregate amount of accounts receivable in the ordinary course proceeds derived from such Disposition permitted by this SUBSECTION 7.05(g) shall not exceed $7,000,000;
(h) Dispositions by any Loan Party to any other Loan Party;
(i) Dispositions of business or in connection with the collection or compromise thereofproperty among Restricted Subsidiaries which are not Guarantors; and
(hj) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, other Dispositions of property of Xxxxxxxxx or any Subsidiarynot otherwise permitted hereunder, including Equity Interests of any Subsidiary; provided PROVIDED that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default the consideration received for such assets shall have occurred and be continuing a value at least equal to the fair market value of such assets, in each case as determined in good faith by the Borrower or the applicable Restricted Subsidiary; and (ii) after giving effect to each if the amount of the Net Proceeds of such DispositionDispositions in any Fiscal Year exceeds 15% of the assets of Holdings and its Subsidiaries (other than the Unrestricted Subsidiaries) on a consolidated basis, Xxxxxxxxx the Aggregate Commitments shall be permanently reduced by the amount of such excess (and the Borrower shall make the prepayment, if any, required in pro forma compliance connection with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition such commitment reduction pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueSECTION 2.08(b).
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, destroyed or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business or equipment on or held for lease in the ordinary course of business, including sales, leases or exchanges of such assets, and in connection with the Golden West Agreements, in each case 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 Xxxxxxxxx the Borrower or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary wholly-owned Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to Loan Party, the transferee thereof must be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents lease assets in lease securitization, structured finance or syndication transactions, provided that the Borrower remains in compliance with its limitations under the Borrowing Base and Eligible Investments all other terms and conditions of this Agreement;
(g) Dispositions pursuant to any sale-leaseback transactions under Section 7.03(e);
(h) sales or other Dispositions of assets having a fair market value (as determined by the Borrower in its reasonable discretion) of less than $75,000,000 in the aggregate during any four fiscal quarter period;
(i) Dispositions of cash equivalents in the ordinary course of business;
(gj) the saleleases or subleases of property, assignmentincluding real property, transfer, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business not materially interfering with the conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(k) licenses for the use of IP Rights in the ordinary course of the Borrower’s or such Subsidiary’s business and, to the extent the American Railcar Acquisition has been consummated, the IP Cross License Agreement and the Trademark License Agreement, in each case, as defined in the American Railcar Acquisition Agreement;
(l) Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business;
(m) any surrender or compromise thereofwaiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(n) to the extent constituting a Disposition, Liens, Investments, fundamental changes and Restricted Payments permitted by Sections 7.01, 7.02, 7.04 and 7.06, respectively;
(o) casualty events or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceedings of, any property of the Borrower or any of its Subsidiaries; and
(hp) in addition to the Dispositions permitted by clause sales of any of the real properties located at 3000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx, 4000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx and 3000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxx 00000;
(aq) through clause (g) of this Section 7.05, Dispositions of non-core assets acquired in connection with any Permitted Acquisition or other Investment permitted under Section 7.02 or other assets if the Disposition thereof is required by law (including anti-trust law) or a Governmental Authority;
(r) the assignment, cancellation, abandonment or other Disposition of (i) intellectual property or (ii) real property leases or licenses, that is, in the good faith judgment of Xxxxxxxxx Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Borrower and the Subsidiaries, taken as a whole;
(s) [reserved];
(t) Dispositions of Excluded GBW Property; and
(u) Dispositions of Investments in, and issuances of any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants joint venture parties set forth in Section 7.12 of this Agreement; joint venture arrangements and similar binding arrangements. provided, however, that (1) any Disposition pursuant to clauses (ac), (f), (g) through and (hi) of property having a book value in excess of $25,000,000 shall be for fair market valuevalue and (2) no Disposition of less than all of the Equity Interests of a Subsidiary Guarantor to Person that is not a Loan Party shall be permitted by this Section 7.05.
Appears in 1 contract
Dispositions. Xxxxxxxxx will notMake any Disposition of any material portion of the assets of the Parent, and will not cause the Borrower or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make any Dispositiontheir Restricted Subsidiaries, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Restricted Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx such property is a Guarantor, the transferee thereof must either be the Borrower or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) in addition to subsection (g) following, so long as no Default shall exist or would result from each such Disposition, (i) Dispositions of Cash Equivalents property in connection with Like Kind Exchanges for a Station acquired in connection with a Permitted Acquisition in accordance with the terms of Section 7.07 and Eligible Investments (ii) Dispositions of property in connection with Station swaps or exchanges, in each case of Stations acquired in connection with a Permitted Acquisition in accordance with the ordinary course terms of business;Section 7.07, provided that, notwithstanding the foregoing, if at any time in connection with a (A) Like Kind Exchange after a property has been Acquired or Disposed of by the Borrower or any of its Subsidiaries in connection with such Like Kind Exchange there shall exist a Default, such Loan Party shall be permitted to consummate the Like Kind Exchange despite the existence of such Default, and (B) swap or exchange described in subsection (ii) preceding, after a property has been Acquired or Disposed of by the Borrower or any of its Subsidiaries in connection with such swap or exchange there shall exist a Default, and such Loan Party has entered into a contractual arrangement binding such Loan Party to consummate such swap or exchange with an unaffiliated third party prior to the existence of such Default, such Loan Party shall be permitted to consummate such swap or exchange despite the existence of such Default; and
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause subsection (af) through clause (g) of this Section 7.05preceding, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, so long as (i) no Default shall exist or Event would result from each such Disposition, (ii) the Borrower has complied with the provisions of Default shall have occurred and be continuing Section 2.04(b)(ii) with respect to each such Disposition and (iiiii) after giving effect to each such Disposition, Xxxxxxxxx shall be in at least 80% of Consolidated Operating Cash Flow, on a pro forma compliance with basis, will be derived from the covenants set forth Business, the Borrower may make Dispositions of assets representing not more than 25% of Consolidated Operating Cash Flow (measured for the most recently completed four fiscal quarters) in Section 7.12 the aggregate for all such asset Dispositions over the term of this Agreement; provided. For the avoidance of doubt, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 operating cash flow from assets sold shall be calculated based on the operating cash flow for fair market valuethe four fiscal quarters preceding the date of sale of the assets sold for all assets sold cumulatively from the Closing Date through the date of determination, measured against Consolidated Operating Cash Flow for the most recently completed four fiscal quarters of the Parent.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out propertyproperty or other property no longer used or useful in the business of the Loan Parties, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and other property (other than equipment or real property) in the ordinary course of business, including the sale or lease of manufactured and remanufactured Aircranes;
(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 other permitted Capital Expenditures, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty or such Capital Expenditures or(iii) the board of directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary wholly-owned Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to Guarantor, the transferee thereof must be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions licenses of Cash Equivalents Intellectual Property (both exclusive and Eligible non-exclusive) in the ordinary course of business and substantially consistent with past practice;
(g) Investments permitted under Section 7.02;
(h) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business;
(gi) Equity Interests issued by the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or Borrower;
(j) Equity Interests issued by any Subsidiary in connection with a Permitted Acquisition;
(k) any sale-leaseback arrangements permitted hereby;
(l) rights of way, easements, and licenses necessary for the collection conduct of Borrower’s or compromise thereofany of its Subsidiaries’ businesses; and
(hm) in addition to the foregoing, Dispositions by the Borrower and its Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing exists or would result from such Disposition and (ii) after giving effect to each such Disposition, Xxxxxxxxx the aggregate book value of all property Disposed of in reliance on this Section 7.05(m) in any fiscal year shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreementnot exceed $2,000,000; provided, however, that any Disposition pursuant to clauses (a) through (hn) of property having a book value in excess of $25,000,000 shall be for fair market valueconsideration.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, exceptexcept for the following:
(a) Dispositions Permitted DST Interests Redemption, with respect to which either of obsolete the following conditions has been satisfied:
(a) Such Permitted DST Interests Redemption shall have been conducted by a Broker Dealer, registered investment advisor or worn other intermediary and consummated in accordance with in the ordinary course of Borrower’s Versity DST Business; and
(b) All of the Gross Receipts for such Permitted DST Interests Redemption shall be deposited in the Collection Account in accordance with Section 10.4(a)Section 10.4(a); or
(ii) such Permitted DST Interests Redemption shall have been consummated pursuant to the conversion by the Fund of a Convertible Fund Loan if (i) at any time prior to the expiration of the Reinvestment Period for the applicable Owned DST, the accounts described in clauses (i) through (xi) of Section 10.4(c) are fully funded, and (ii) at any time after the expiration of the Reinvestment Period for the applicable Owned DST, the accounts described in clauses (i) through (vii) of Section 10.4(d) are fully funded;
(b) sales of inventory or obsolete, worn-out property, or surplus property no longer useful in the business whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions , and dispositions of inventory furniture, fixtures and equipment no longer used or useful, in the ordinary course of business;
(c) Dispositions sales without recourse of equipment or real property to accounts receivable solely for the extent that (i) such property is exchanged for credit against the purchase price purpose 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments collection thereof in the ordinary course of business;
(gd) any sale of any property by any Loan Party or Owned DST (or its wholly owned Subsidiary) to any other Loan Party or Owned DST (or its wholly owned Subsidiary) to the sale, assignment, transfer, Disposition, discount extent any resulting Investment constitutes a Permitted Investment;
(e) dispositions or forgiveness discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business or in connection with the collection or compromise thereof(and not as part of any financing transaction); and
(hf) sales of Owned Core Assets in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; ordinary course provided that such Dispositions consummated during the term of this Agreement proceeds thereof are applied in accordance with the aggregate do not exceed twenty-five percent (25%) terms of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that applicable Senior Mortgage Loan Documents and, to the extent the property subject to any such Disposition represents more than five percent (5%) of proceeds constitute Gross Receipts, the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueterms hereof.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of damaged, obsolete or worn out property, or property no longer used or usable in the business, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business and terminations of leases and licenses 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 or related replacement property used or usable in the business or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar or related replacement propertyproperty used or usable in the business;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) Holdings to Xxxxxxxxx or to a Wholly–Owned any Subsidiary of Xxxxxxxxx or (ii) to Holdings; provided that if the transferor of such property is a joint venture or to Loan Party, the transferee thereof must either be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04or discounts without recourse of accounts receivable in connection with the compromise or collection thereof;
(f) Dispositions of investment securities and Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the saleDispositions permitted by Section 7.04;
(h) Leases, assignmentsubleases, transferlicenses or sublicenses (including of IP Rights) and terminations thereof, Disposition, discount or forgiveness of accounts receivable in each case in the ordinary course of business that do not materially interfere with the business of Holdings and its Subsidiaries (taken as a whole);
(i) 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 by Holdings and its Subsidiaries of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition and after giving effect thereto, no Default shall exist or would result from such Disposition, (ii) the proceeds of all such Dispositions are less than $10,000,000 in any Fiscal Year, with unused amounts in any Fiscal Year being carried over to the next succeeding Fiscal Year only, (iii) the consideration received for such property shall be in an amount at least equal to the fair market value thereof (as determined in good faith by a Responsible Officer of a Borrower), (iv) with respect to any such transaction (or series of related transactions) for the Disposition of assets or property having a values in excess of $1,000,000, no less than 75% of such consideration shall be paid in cash or Cash Equivalents or Designated Non-Cash Consideration (to the extent that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $20,000,000 and (y) 5.0% of consolidated total assets of Holdings and its Subsidiaries as of the last day of the then most recent Measurement Period (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (v) the Net Cash Proceeds thereof shall be applied as required by Section 2.03(b)(i);
(k) Dispositions of non-core assets acquired in connection with Permitted Acquisitions or other Investments; provided that (i) the collection aggregate amount of such sales shall not exceed 50% of the fair market value of the acquired entity or compromise thereofbusiness 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;
(l) Dispositions of real property pursuant to sale-leaseback transactions; provided that (i) the consideration received shall be in an amount at least equal to the fair market value thereof (as determined in good faith by a Responsible Officer of a Borrower) and no less than 75% of such consideration shall be paid in cash or Cash Equivalents, (ii) the proceeds from all such sale-leaseback transactions (but excluding any sale-leaseback transaction with respect to the Oneida Sales Office) shall not exceed $10,000,000 in the aggregate since the Closing Date and (iii) the Net Cash Proceeds thereof shall be applied as and to the extent required by Section 2.03(b)(i);
(m) 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 or similar binding agreements;
(n) the unwinding of any Swap Contract; and
(ho) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiarythe Oneida Sales Office, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valuesale-leaseback transaction.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make Make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, Dispositions of property no longer used, useful or economically practicable to maintain in the conduct of the business of the Borrower and its Restricted Subsidiaries (including allowing any registrations or any applications for registration of any IP Rights meeting the foregoing requirements to lapse or go abandoned) and Dispositions of discontinued operations in the ordinary course of business;
(b) Dispositions of inventory inventory, goods held for sale and other immaterial assets 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) an amount equal to the net proceeds of such Disposition are reasonably is promptly applied to the purchase price of such replacement property;
(d) (A) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)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;
(e) Dispositions by the Borrower or any Restricted Subsidiary of property pursuant to Sale Leasebacks permitted by Section 7.047.07;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments Equivalents;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(h) licenses, sublicenses or cross-licenses of IP Rights in the ordinary course of business;
(gi) sales, Dispositions or contributions of property (A) between Loan Parties, (B) between Restricted Subsidiaries (other than Loan Parties), (C) by Restricted Subsidiaries that are not Loan Parties to the Loan Parties or (D) by Loan Parties to any Restricted Subsidiary that is not a Loan Party; provided that with respect to Dispositions made pursuant to clause (D) (1) the saleportion (if any) of any such Disposition made for less than Fair Market Value (on the earlier of (i) the date the legally binding commitment for such Disposition was entered into and (ii) if no legally binding commitment was entered into, assignment, transfer, the date of such Disposition) and (2) any noncash consideration received in exchange for any such Disposition, discount shall in each case constitute an Investment in such Restricted Subsidiary;
(j) leases, subleases, licenses, sublicenses, occupancy agreements or forgiveness assignments of accounts receivable property (other than IP Rights) in the ordinary course of business or in connection with the collection or compromise thereof; andbusiness;
(hk) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(l) Dispositions made to consummate the Transactions;
(m) Dispositions of Investments (including Equity Interests) in addition Joint Ventures to the Dispositions permitted by clause 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;
(an) through clause (g) of this Section 7.05, Dispositions the transfer for fair value of property of Xxxxxxxxx or any Subsidiary, (including Equity Interests of any SubsidiarySubsidiaries) to another Person in connection with a joint venture arrangement with respect to the transferred Property; provided that such Dispositions consummated during transfer is an Investment permitted pursuant to Section 7.02(c), (i)(i), (j), (o) or, (s), (gg) or (ii);
(o) the term unwinding of this Agreement in the aggregate do not exceed twenty-five percent Swap Contracts permitted hereunder;
(25%p) transfers of condemned property as a result of the total assets exercise of Xxxxxxxxx “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and its Subsidiariestransfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of any asset between or among the Restricted Subsidiaries as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to this Section 7.05;
(r) the purchase and sale or other transfer, in each case for cash, of Permitted Receivables Financing Assets (including by capital contribution) to a Permitted Receivables Financing Subsidiary;
(s) Dispositions by the Borrower or any Restricted Subsidiary not otherwise permitted under this Section 7.05; provided further that to (i) at the extent the property subject to time of such Disposition (other than any such Disposition represents more than five percent (5%) made pursuant to a legally binding commitment entered into at a time when no Event of the total assets of Xxxxxxxxx and its SubsidiariesDefault exists), (i) no Default or Event of Default shall have occurred and be continuing exist or would result from such Disposition and (ii) after giving effect to each at least 75% of the purchase price for such Disposition, Xxxxxxxxx property in excess of $50,000,000 shall be paid to such Borrower or such Restricted Subsidiary, as applicable, in pro forma compliance with the covenants set forth in Section 7.12 form of this Agreementcash or Cash Equivalents; provided, however, that for the purposes of this clause (s)(ii), the following shall be deemed to be cash: (A) any Disposition pursuant to clauses liabilities (a) through (has shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of property 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, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received in the conversion) within 180 days following the closing of the applicable Disposition; and (C) any Designated Non-Cash Consideration in respect of such Disposition having a book value an aggregate Fair Market Value, taken together with the Designated Non-Cash Consideration in respect of all other Dispositions, not in excess of the greater of (i) $25,000,000 shall be for fair market value.75,000,000 and (ii) (A) prior to a Publishing Assets Disposition, 0.70% of Consolidated Total Assets and
Appears in 1 contract
Samples: Credit Agreement (Chicagoland Television News, LLC)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) (i) Dispositions of obsolete obsolete, surplus or worn out propertytangible property contained in COKeM’s warehouse located at 5600 Xxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000 xn connection with the permanent closing of such warehouse, in an aggregate amount (valued at book value) for all such Dispositions under this clause (i) not to exceed $750,000 and (ii) other Dispositions of obsolete, surplus or worn out property (other than Intellectual Property), whether now owned or hereafter acquired, in the ordinary course of business, and the abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the management of such Loan Party, no longer economically practicable to maintain or useful in the conduct of the business of such Loan Party and its Subsidiaries, taken as a whole, in an aggregate amount (valued at book value) for all such Dispositions under this clause (ii) not to exceed $250,000 in any Fiscal Year;
(b) Dispositions of inventory and 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 propertypermitted by Section 7.04(b);
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of cash and Cash Equivalents and Eligible Investments Equivalents, in each case in the ordinary course of business;
(ge) the sale, assignment, transfer, Disposition, discount or forgiveness Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business business;
(f) any Permitted Receivables Purchase Arrangement;
(g) Dispositions of property for 100% cash consideration that are not otherwise permitted under this Section 7.05, so long as:
(i) such Disposition is to a Person who is not a Loan Party or an Affiliate of any Loan Party;
(ii) (A) immediately prior to and immediately after giving effect to any such Disposition, there does not exist a Default or Event of Default; (B) such Disposition could not reasonably be expected to result in connection with the collection a Default or compromise thereofEvent of Default and (C) no Revolver Overadvance shall exist, in each case before or immediately after giving effect to such Disposition; and
(hiii) the aggregate fair market value of all assets subject to Dispositions in addition to the Dispositions permitted by clause (areliance on this Section7.05(g) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx does not exceed $250,000 in any Fiscal Year or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated $500,000 during the term of this Agreement Agreement;
(h) Dispositions constituting (i) Liens permitted by Section 7.01, (ii) Investments permitted by Section 7.02, and (iii) Restricted Payments permitted by Section 7.06; and
(i) Dispositions of assets subject to an Event of Loss (including dispositions in lieu of condemnation); provided that all sales, transfers, leases and other dispositions permitted under this Section 7.05 shall (1) except in the case of clause (c) above, be made for at least fair value (as determined by such Loan Party or Subsidiary in its good faith, commercially reasonable discretion) and (2) except in the case of clause (c) above, be accompanied by the delivery of an updated pro forma Borrowing Base Report to the extent any asset or assets having a value of $50,000 or more, either individually or in the aggregate do not exceed twenty-five percent (25%) based on the fair market value of the total assets so disposed) was included in the most recently delivered Borrowing Base Report. Notwithstanding the foregoing, in no event shall this Section 7.05 or any other provision of Xxxxxxxxx and its Subsidiaries; provided further this Agreement permit any Loan Party to make a Disposition or other transfer of any Material Intellectual Property or any of the Equity Interests of any Person that to the extent the property subject owns any Material Intellectual Property to any such Disposition represents more Person that is not a Loan Party, in each case, other than five percent (5%) the non-exclusive licensing of Intellectual Property in the total assets ordinary course of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreementbusiness; provided, however, that no Loan Party shall modify or change any Disposition pursuant terms of any licensing agreement relating to clauses (a) through (h) Material Intellectual Property which would eliminate or materially reduce the rights or benefits of property having a book value such Loan Party or would in excess of $25,000,000 shall any other way be for fair market valuematerially adverse to such Loan Party or the Agents and Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Alliance Entertainment Holding Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete property that is worn, damaged, unnecessary, no longer used or worn out propertyuseful, or obsolete, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx the Borrower or any Restricted Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Borrower or to a Wholly–Owned Subsidiary Restricted Subsidiary; provided that if the transferor of Xxxxxxxxx or (ii) to such property is a joint venture or to Loan Party, the transferee thereof must be a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Loan Party;
(e) Dispositions permitted by Section 7.04;7.04 or as an Investment permitted by Section 7.03.
(f) Licenses or sublicenses of Intellectual Property granted to third parties in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Restricted Subsidiaries;
(g) issuances of Equity Interests so long as no Change of Control occurs;
(h) any abandonment, lapse or cancellation of intellectual property that, in the reasonable good faith judgment of Borrower, is no longer used or useful in any material respect in the business of Borrower and its Restricted Subsidiaries taken as a whole, or which abandonment, lapse or cancellation is not within the reasonable control of Borrower or its Subsidiaries;
(i) any Disposition of real property as a result of a condemnation, eminent domain, confiscation or requisition of such real property required by a Governmental Authority; provided still further that, the Net Cash Proceeds of such Disposition are applied as set forth in Section 2.05(b)(i);
(j) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(k) any involuntary loss, damage or destruction of property;
(l) Dispositions of cash and Cash Equivalents and Eligible Investments in the ordinary course of business;
(gm) Dispositions by the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions Borrower and its Restricted Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that at the time of such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its SubsidiariesDisposition, (i) no Default shall exist or Event of Default shall have occurred and be continuing and would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (f) (after giving effect to each such Disposition, Xxxxxxxxx ) in any fiscal year shall be in pro forma compliance with not exceed an amount equal to 5% of Consolidated Total Assets as of the covenants set forth in Section 7.12 last day of this Agreementthe immediately preceding fiscal year; provided, however, that any and (iii) such Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value; provided that, the Net Cash Proceeds of such Disposition are applied as set forth in Section 2.05(b)(i).
Appears in 1 contract
Samples: Credit Agreement (TopBuild Corp)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions (including non-exclusive licenses) of inventory and 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 Xxxxxxxxx or any Subsidiary member of Xxxxxxxxx (i) the Group to Xxxxxxxxx or any other member of the Group; provided that if such property is subject to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) any Lien under any Collateral Document prior to a joint venture or any such Disposition, such property shall remain subject to a non Wholly-Owned Subsidiary of Xxxxxxxxx to valid and perfected Liens under the extent constituting an Investment permitted by Section 7.03(h)Collateral Documents after such Disposition;
(e) Dispositions permitted by Section 7.047.04 (other than Section 7.04(c)) or Section 7.06 (other than Section 7.06(f)) and Dispositions constituted by the making of any Investment permitted by Section 7.03 (in the case of any Disposition of property pursuant to Section 7.03(c), subject to the proviso in clause (d) above);
(f) Dispositions by Holdings and its Subsidiaries pursuant to sale-leaseback transactions, provided that the aggregate fair market value of Cash Equivalents all property so Disposed of shall not exceed $50,000,000 in aggregate for Holdings and Eligible Investments its Subsidiaries from and after the Signing Date;
(g) Dispositions of overdue accounts receivable solely in connection with the collection or compromise thereof;
(h) Dispositions pursuant to operating leases (not in connection with any sale and leaseback or other Capitalized Lease or Synthetic Lease Obligations) entered into in the ordinary course of business;
(gi) Dispositions of property and assets subject to condemnation and casualty events;
(j) Dispositions of cash and Cash Equivalents in the ordinary course of business; and
(k) Dispositions by GII and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the saleaggregate book value of all property Disposed of in reliance on this clause (k) in any fiscal year shall not exceed $25,000,000 and (iii) the purchase consideration for such asset paid to (or to the order of) GII or such Subsidiary shall consist of not less than 75% in cash or cash equivalents (including Cash Equivalents); provided, assignmenthowever, transferthat (A) any Disposition pursuant to Section 7.05(a) through Section 7.05(c), DispositionSection 7.05(e) (except insofar as it relates to any transaction solely between members of the Group or Section 7.06), discount or forgiveness Section 7.05(f), Section 7.05(g) (except to the extent determined by the applicable Person making such Disposition in good faith to be appropriate in accordance with its usual practice), Section 7.05(h) and Section 7.05(k) shall be for fair market value, (B) nothing contained in this Section 7.05 shall prohibit the disposition of accounts receivable mortgage loans in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05Genpact Mortgage Services, Dispositions of property of Xxxxxxxxx Inc. or any Subsidiarysuccessor entity thereof upon the acquisition of Genpact Mortgage Services, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent Inc. and (25%C) (other than as permitted under Section 7.05(d)) none of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent shall consist of any Equity Interest in any Borrower or any interest therein or (5%unless in the case of any sale of all (but not part) of the total assets Equity Interests in any Subsidiary of Xxxxxxxxx Holdings that is a Guarantor and its Subsidiaries, (ithe requirements of Section 6.12(b) no Default continue to be complied with after such sale) any Equity Interest in any such Subsidiary or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueinterest therein.
Appears in 1 contract
Samples: Credit Agreement (Genpact LTD)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete used, obsolete, damaged, worn-out or worn out propertysurplus equipment, or property no longer useful in the conduct of the business or otherwise economically impracticable to maintain, whether now owned or hereafter acquired, in the ordinary course of business;; CHAR1\1847295v5
(b) Dispositions Disposition of inventory inventory, goods held for sale and other assets and licenses of intellectual property (including on an intercompany basis), in each case in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that such property is exchanged for credit against, or the net cash proceeds of such Disposition are reasonably promptly applied to, the purchase price of property useful in the business of the Company and its Restricted Subsidiaries as conducted on the Fifth Amendment Effective Date;
(d) Dispositions of property (including, for the avoidance of doubt, owned Equity Interests) to the Company or to another Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, the transferee thereof must be a Loan Party;
(e) Dispositions permitted by Section 7.04 (other than clause (e) thereof) or Section 7.06;
(f) non-exclusive licenses of IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five (5) years;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(h) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Company and its Restricted Subsidiaries;
(i) Dispositions of Cash Equivalents in the ordinary course of business;
(j) to the extent constituting Dispositions, Recovery Events;
(k) Dispositions of Securitized Assets by (i) any Special Purpose Subsidiary in connection with any Permitted Securitization Transaction or (ii) the Specified Receivables Purchase Agreement;
(l) the Disposition of each of (i) the Toronto Property and (ii) all or any part of the Valencia Property, in the case of each of the foregoing clauses (i) and (ii), to any Person other than a Subsidiary in a single transaction or series of related transactions;
(m) the Disposition of non-core or non-strategic assets acquired in connection with a Permitted Acquisition or similar Investment; provided that (x) to the extent required by Section 2.06(b)(ii), such Net Cash Proceeds from any such sale are reinvested or applied in prepayment of the Loans in accordance with the provisions of Section 2.06(b)(v), (y) immediately after giving effect thereto, no Event of Default would exist and (z) the fair market value of such non-core or non-strategic assets (determined as of the date of acquisition thereof by the applicable Loan Party or Restricted Subsidiary, as the case may be) so Disposed shall not exceed twenty-five percent (25%) of the purchase price paid for all such assets acquired in such Permitted Acquisition;
(n) the termination of a lease due to the default of the landlord thereunder or pursuant to any right of termination of the tenant under the lease;
(o) Dispositions of equipment or real property to the extent that (i) 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;; CHAR1\1847295v5
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(gp) the sale, assignment, transfer, Disposition, discount lease or forgiveness sub-lease of accounts receivable any real or personal property in the ordinary course of business and the termination or non-renewal of any real property lease not used or not necessary to the operations of the Company or any Restricted Subsidiary;
(q) Dispositions in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Company, are not material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(r) Dispositions of Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned Subsidiaries to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(s) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(t) Dispositions in connection with the collection termination or compromise thereof; andunwinding of Swap Contracts;
(hu) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property Equity Interests or Indebtedness of Xxxxxxxxx Unrestricted Subsidiaries;
(v) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any Subsidiary, including Equity Interests comparable provision of any Subsidiaryforeign jurisdiction), of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Company) for like property or assets; provided that (i) within ninety (90) days of any such Dispositions consummated during the term of this Agreement exchange or swap, in the aggregate do not exceed twenty-five percent (25%) case of the total assets of Xxxxxxxxx any Loan Party and its Subsidiaries; provided further that 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 subject to 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 represents 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 6.20 at such time;
(x) Dispositions of accounts receivable due from any customer of the Company or any Restricted Subsidiary in connection with such customer’s supplier financing program pursuant to a customary receivables sale agreement (each such Disposition, a “Permitted Receivables Transaction”); provided that (i) any such sale is made on a nonrecourse basis to the Company and its Restricted Subsidiaries other than with respect to the representations given by the Company or the applicable Restricted Subsidiary, as the case may be, in connection with such receivables, (ii) if the Company or such Restricted Subsidiary, as the case may be, receives an updated pricing schedule that provides for a total “discount rate” resulting in more than a five percent (5%) of discount on the total assets amount of Xxxxxxxxx each account receivable sold pursuant to such receivables sale agreement (i.e., discounting any such receivable so that the receivables would be sold for less than “95 cents on the dollar”), the Company or such Restricted Subsidiary, as the case may be, does not permit any such receivables to be sold at such discount rate for more than five (5) Business Days after its receipt of such updated pricing schedule and its Subsidiaries(iii) any lien release and UCC-3 financing statement amendment to be filed in connection with such lien release shall be reasonably satisfactory (including with respect to the terms and conditions thereof in the case of any such lien release) to the Administrative Agent and such UCC-3 financing statement amendment shall be promptly filed by the Administrative Agent after entering into such lien release; and CHAR1\1847295v5
(y) Dispositions not otherwise permitted under this Section 7.05, so long as (i) no Default or Event of Default shall have has occurred and be continuing and is continuing, (ii) after giving effect to each such Dispositionat least seventy-five percent (75%) of the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction, Xxxxxxxxx (iii) the consideration paid in connection therewith shall be in pro forma compliance with an amount not less than the covenants set forth fair market value of the property disposed of (as reasonably determined by the Company), (iv) such transaction does not involve the Disposition of a minority Equity Interest in any Loan Party (other than the Company), (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 7.12 of this Agreement; provided7.05, however, that any Disposition pursuant to clauses and (avi) through (h) of property having a the aggregate net book value of all of the assets subject to Dispositions made in excess of reliance on this clause (y) shall not exceed $25,000,000 shall be for fair market value45,000,000 in any fiscal year.
Appears in 1 contract
Samples: Credit Agreement (Celestica Inc)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and equipment 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 Xxxxxxxxx between or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)among Borrowers;
(e) Dispositions permitted by Section 7.04between or among non-Borrower Restricted Subsidiaries and between or among Unrestricted Subsidiaries;
(f) Dispositions of Cash Equivalents and Eligible Investments in property by any non-Borrower Subsidiary to any Borrower, so long as such Disposition complies with the ordinary course requirements of businessSection 7.08 (Transactions with Affiliates);
(g) Dispositions permitted by Section 7.04 (Fundamental Changes);
(h) Dispositions by the Company and its Subsidiaries of property pursuant to sale-leaseback transactions, assignment, transfer, Disposition, discount or forgiveness provided that the book value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date;
(i) Dispositions in the nature of exclusive licenses of IP Rights not material (determined as of the date of the applicable license) to the business of the Borrowers and the Restricted Subsidiaries;
(j) Dispositions by the Company and its Subsidiaries of accounts receivable arising in the ordinary course of business which are overdue or payable by a distressed company in connection with the compromise or collection thereof;
(k) Dispositions of bankruptcy claims of customers of the Company or compromise thereofany Subsidiary;
(l) Dispositions of property acquired by the Company or any Subsidiary in a Permitted Acquisition not in excess of $10,000,000 in the aggregate other than property used solely in connection with Unrelated Lines of Business, for which there shall be no limit, but proceeds of which shall nonetheless be subject to the provisions of Section 2.06(b) hereof; provided that after giving effect to such Permitted Acquisition and such related Disposition, the Company or Subsidiary is in compliance with Section 7.07 (Change in Nature of Business); and
(hm) in addition to the Dispositions by Borrowers and their Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) at the time of such Disposition, no Default shall exist or Event of Default shall have occurred and be continuing would result from such Disposition and (ii) after giving effect to each such Disposition, Xxxxxxxxx the aggregate book value of all property Disposed of in reliance on this clause (l) in any fiscal year shall be not exceed $25,000,000 in pro forma compliance with any fiscal year and $35,000,000 in the covenants set forth in Section 7.12 aggregate during the term of this Agreement; provided, however, that any Disposition other than pursuant to clauses clause (aj) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause Make any Disposition of any material portion of the assets of the Borrower or permit any of its Subsidiaries to, make any Disposition or enter into any agreement to make any DispositionRestricted Subsidiaries, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (iA) such property is exchanged for credit against the purchase price of similar replacement property or (iiB) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) any Restricted Subsidiary to Xxxxxxxxx the Borrower or to a Wholly–Owned another Restricted Subsidiary of Xxxxxxxxx or (ii) the Borrower to any Restricted Subsidiary; provided that if the transferor of such property is the Borrower or a joint venture Guarantor, the transferee thereof must either be the Borrower or to a non Wholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Guarantor;
(e) Dispositions permitted by in accordance with the terms of Section 7.047.04(a), (b) and (d);
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
addition to subsection (g) the salefollowing, assignment, transfer, so long as no Default exists prior to and/or after giving effect to any such Disposition, discount or forgiveness (A) Dispositions of accounts receivable in the ordinary course of business or property in connection with the collection or compromise thereofLike Kind Exchanges; and
(h) provided, in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05each case, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject being transferred constitutes Collateral, such replacement property shall constitute Collateral; and (B) Dispositions in connection with Station swaps or exchanges, in each case of Stations acquired in connection with a Permitted Acquisition in accordance with the terms of Section 7.07, provided that, notwithstanding the foregoing, if at any time in connection with a (I) Like Kind Exchange after a property has been Acquired or Disposed of by the Borrower or any of its Subsidiaries in connection with such Like Kind Exchange there shall exist a Default, such Loan Party shall be permitted to consummate the Like Kind Exchange despite the existence of such Default, and (II) swap or exchange described in subsection (B) preceding, after a property has been Acquired or Disposed of by the Borrower or any of its Subsidiaries in connection with such swap or exchange there shall exist a Default, and such Loan Party has entered into a contractual arrangement binding such Loan Party to consummate such swap or exchange with an unaffiliated third party prior to the existence of such Default, such Loan Party shall be permitted to consummate such swap or exchange despite the existence of such Default;
(g) in addition to subsection (f) preceding, so long as (A) no Default exists prior to and/or after giving effect to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) no Default or Event of Default shall have occurred and be continuing and (iiB) after giving effect the Borrower has complied with the provisions of Section 2.05(b)(i) with respect to each such Disposition, Xxxxxxxxx shall be the Borrower may make Dispositions of assets in pro forma compliance with any single transaction or series of related transactions in an amount not to exceed a fair market value of $100,000,000 in the covenants set forth in Section 7.12 aggregate during the term of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through ;
(h) (i) dispositions required by any Governmental Authority or applicable Law in connection with a Permitted Acquisition or other acquisition and (ii) any dispositions of any property having acquired as part of a book strategic Permitted Acquisition or other acquisition of other property in order to effect such strategic Permitted Acquisition or other acquisition and the property or assets to be disposed of were not part of the property or assets intended to be retained in the long term, as determined in good faith by the Borrower; provided that, in each case, (i) the Borrower (or the Restricted Subsidiary), as the case may be, receives consideration at the time of such disposition at least equal to the fair market value of the assets disposed of (as determined in good faith by the Borrower) and (ii) if the subject transaction involves aggregate consideration in excess of $25,000,000 shall 2,500,000, at least 75% of the consideration for such disposition is in the form of cash or Cash Equivalents;
(i) any sale, lease, or modification of the broadcast spectrum licensed to Borrower or any License Subsidiary by the FCC that is undertaken pursuant to the Communications Laws and which does not curtail Borrower’s or such License Subsidiary’s continued broadcasting service to the public (e.g., changes in broadcast output channel, reductions in useable bandwidth, leasing of digital subchannels, or the sale, lease, or hybrid arrangement involving portions of the licensed spectrum or the bandwidth constituting that spectrum, resulting from the adoption of new or modified broadcast and communications technologies) in a manner which would reasonably be for fair market valueexpected to have a Material Adverse Effect on Borrower’s or such License Subsidiary’s continued operation of the Business;
(j) dispositions of Cash Equivalents; and
(k) a non-exclusive grant of a license to use the Borrower’s or any Restricted Subsidiary’s patents, trade secrets, know-how or other intellectual property to the extent that such license does not limit the licensor’s use of the patent, trade secret, know-how or other intellectual property.
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Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, replaced or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and in the ordinary course of business;
(c) Dispositions the use or transfer of equipment money and Cash Equivalents by the Borrowers and their Subsidiaries in a manner that is not prohibited by the terms of this Agreement 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 propertyRevolving Credit Documents;
(d) Dispositions by the Borrowers and their Subsidiaries of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx accounts, provided that (i) to Xxxxxxxxx the consideration payable in connection with the sale or to a Wholly–Owned Subsidiary disposition of Xxxxxxxxx such accounts shall be in cash and shall equal no less than 100% of the aggregate original invoice amount of such accounts, or (ii) in the case of any accounts that are subject to a joint venture or to a non Wholly-Owned Subsidiary Liens in favor of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h)Revolving Agent under the Revolving Credit Documents, such accounts are disposed of in compliance with the requirements set forth in the Revolving Credit Agreement;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions by the Borrowers of Cash Equivalents obsolete, damaged or worn out equipment constituting Collateral (i) that is promptly (or in the case of damaged equipment in connection with an event of loss, within 180 days) replaced with equipment of similar manufacture having value, remaining useful life and Eligible Investments utility at least equal to, and being in at least as good an operating and maintenance condition as, the equipment being replaced, or (ii) that is not replaced in accordance with clause (i) above, in an aggregate amount not to exceed $2,000,000 during the term of this Agreement; provided that (A) within 180 Business Days, the proceeds of any such Disposition that is not reinvested in replacement equipment pursuant to clause (i) above shall be paid to the Payment Agent as a prepayment of the outstanding principal amount of the Term Loans, and (B) concurrently with such prepayment, ThermaClime shall deliver to the Payment Agent a certificate describing the Disposed of equipment and certifying that such equipment was obsolete, damaged or worn out and that the failure to replace such equipment could not be reasonably expected to have a Material Adverse Effect. Upon receipt by the Payment Agent of (x) either evidence of replacement of equipment pursuant to clause (i) above or the proceeds of a Disposal of equipment pursuant to clause (ii) above and (y) to the extent necessary or appropriate to create a Lien in favor of the Collateral Agent on any replacement equipment, duly executed security documents, the Payment Agent will take such steps as are necessary to promptly release the Collateral Agent’s Lien on the equipment so Disposed of; and
(g) Dispositions permitted under Section 7.4(a) of the Revolving Credit Agreement (as in effect on the date hereof), provided that the proceeds of any such Disposition are applied in accordance with the requirements of Section 7.4(a) of the Revolving Credit Agreement (as in effect on the date hereof);
(h) nonexclusive licenses of IP Rights in the ordinary course of business;
(gi) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereofIntercompany Leases; and
(hj) in addition Existing Permitted Leases and Use Rights. Notwithstanding anything to the Dispositions permitted by clause (a) through clause (g) of contrary contained in this Section 7.05, Dispositions Borrowers shall not (and shall not permit any of property their Subsidiaries to) make or suffer to exist any Disposition of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that Collateral except to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiariespermitted by Sections 7.05(f), (i) no Default or Event of Default shall have occurred and be continuing and (iij) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valueabove.
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Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition (other than any property which, at the time of any Disposition, constitutes Unrestricted Margin Stock) or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx the Company or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Wholly-Owned Subsidiary of Xxxxxxxxx its Subsidiaries to the extent constituting an Investment permitted by Section 7.03(h)Company or any of its Subsidiaries;
(e) Dispositions permitted by Section listed on Schedule 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of businesspursuant to a Permitted Securitization;
(g) Dispositions by the Company and its Subsidiaries of property pursuant to sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof-leaseback transactions; and
(h) in addition to Dispositions by the Dispositions Company and its Subsidiaries not otherwise permitted by clause (a) through clause (g) of under this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary7.04; provided that (i) at the time of such Dispositions consummated during Disposition, no Default exists or would result from such Disposition and (ii) the term aggregate book value of all property Disposed of in reliance on this Agreement clause (h) in the aggregate do period of twelve consecutive months after the Closing Date shall not exceed twenty-five percent (25%) 10% of the book value of the total consolidated assets of Xxxxxxxxx the Company and its Subsidiaries (including the Target and its Subsidiaries; provided further ) in accordance with GAAP as at the beginning of such twelve-month period (based on the most recent financial statements of the Company prior to the beginning of such twelve-month period that have been delivered pursuant to Section 6.01 and, to the extent that such financial statements do not include the property subject to any such Disposition represents more than five percent (5%) consolidated assets of the total assets of Xxxxxxxxx Target and its Subsidiaries, (i) no Default or Event calculated on a Pro Forma Basis to include the assets of Default shall have occurred the Target and be continuing and (ii) after giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with its Subsidiaries based on the covenants set forth in Section 7.12 most recent available financial statements of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market valuethe Target).
Appears in 1 contract
Samples: Bridge Credit Agreement (Thermo Fisher Scientific Inc.)
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property equipment is exchanged for credit against the purchase price of similar replacement property equipment or (ii) (A) the proceeds of such Disposition are reasonably promptly applied to the purchase price paid not less than 75% in cash, (B) within 180 days of such Disposition, the Parent or the applicable Restricted Subsidiary has obtained a written replacement propertyorder to replace such equipment with replacement equipment and (C) if the equipment subject to such Disposition was Collateral, such replacement equipment is or becomes Collateral subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties substantially contemporaneously with the consummation of such replacement;
(d) Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx (i) to Xxxxxxxxx the Parent or to a Wholly–Owned Subsidiary of Xxxxxxxxx or (ii) to a joint venture or to a non Whollywholly-Owned Subsidiary of Xxxxxxxxx to the extent constituting an Investment permitted by Section 7.03(h);
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Cash Equivalents and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any owned Restricted Subsidiary; provided that if the transferor of such Dispositions consummated during property is a Loan Party or, prior to the term C&J Joinder Date, C&J or any of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries, the transferee thereof must be a Loan Party; provided further that to the extent the property subject to any such no Disposition represents more than five percent (5%) of the total assets Equity Interests in any Restricted Subsidiary that does not constitute an Excluded Subsidiary on the Closing Date shall be permitted under this clause (d) if the result of Xxxxxxxxx and its Subsidiaries, (i) no Default such transaction is to cause such Restricted Subsidiary to become an Excluded Subsidiary if such Person was not an Excluded Subsidiary or Event of Default shall have occurred and be continuing and (ii) after an Immaterial Subsidiary immediately prior to giving effect to each such Disposition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any Disposition pursuant to clauses (a) through (h) of property having a book value in excess of $25,000,000 shall be for fair market value.thereto;
Appears in 1 contract
Dispositions. Xxxxxxxxx will not, and will not cause or permit any of its Subsidiaries to, make Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out propertyproperty and assets no longer useful in the business of the Borrowers and their Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and 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 Xxxxxxxxx or any Subsidiary of Xxxxxxxxx among the Borrowers and their Wholly-Owned Subsidiaries as follows:
(i) to Xxxxxxxxx or to if the transferor of such property is a Wholly–Owned Subsidiary of Xxxxxxxxx or Loan Party, then the transferee thereof must be a Loan Party;
(ii) to if the transferor of such property is not a joint venture Loan Party, then the transferee thereof must either be a Loan Party or to a non WhollySubsidiary; or
(iii) if the transferor of such property is a Loan Party and the transferee of such property is a Subsidiary that is not a Loan Party, the aggregate amount transferred during the term of this Agreement (net of any proceeds received from such non-Owned Subsidiary of Xxxxxxxxx Loan Party in consideration for the transferred property) shall not exceed $20.0 million (the “Non-Loan Party Disposition Basket”), it being understood that (i) the Non-Loan Party Disposition Basket shall only be available for such a disposition to the extent constituting an that there is availability under the Non-Loan Party Investment permitted by Section 7.03(h)Basket and (ii) that any usage of the Non-Loan Party Disposition Basket shall reduce availability under the Non-Loan Party Investment Basket on a dollar for dollar basis;
(e) Dispositions permitted by Section 7.046.04;
(f) Dispositions Non-exclusive licenses of Cash Equivalents patents, trademarks, copyrights and Eligible Investments in the ordinary course of business;
(g) the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable other intellectual property rights in the ordinary course of business and consistent with past practice;
(g) Dispositions by Holdings and its Subsidiaries not otherwise permitted under this Section 6.05; 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 connection reliance on this clause (h) shall not exceed $15.0 million and (iii) with respect to any disposition of assets with a fair market value of $500,000 or greater, at least 75% of the collection purchase price for such asset shall be paid to Holdings or compromise thereofsuch Subsidiary in cash and Cash Equivalents; and
(h) in addition to the Dispositions permitted by clause (a) through clause (g) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries, (i) so long as no Default or Event of Default shall have occurred occur and be continuing and (ii) after giving effect at the time of such grant, the grant of any option or other right to each such Disposition, Xxxxxxxxx shall purchase any asset in a transaction that would be in pro forma compliance with permitted under the covenants set forth in provisions of Section 7.12 of this Agreement; 6.05(g). provided, however, that any Disposition pursuant to clauses (aSection 6.05(g) through (hor Section 6.05(h) of property having a book value in excess of $25,000,000 shall be for fair market value.
Appears in 1 contract
