Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except: (a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property; (b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06; (c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property; (d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower; (e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and: (i) at least 75% of the consideration for such Disposition is cash; (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d); (iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition; (iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and (v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date; (f) such Disposition results from a casualty or condemnation in respect of such property or assets; (g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or (h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transaction.
Appears in 3 contracts
Samples: Credit Agreement (Mueller Group, Inc.), Credit Agreement (Walter Industries Inc /New/), Credit Agreement (Mueller Water Products, Inc.)
Dispositions. Make any Disposition or enter into of any agreement Borrowing Base Property (other than (x) the Disposition of a Borrowing Base Property pursuant to make any Disposition, excepta Permitted PILOT Transaction and (y) in connection with the Lease Agreements) unless:
(a) Dispositions the consideration paid in connection therewith shall be in an amount not less than the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part fair market value of the Borrower’s Property disposed of and in cash or Cash Equivalents with such payment to be made contemporaneously with consummation of the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyapplicable transaction;
(b) no later than five (5) Business Days prior to any Disposition that constitutes such Disposition, the Parent shall have delivered to the Administrative Agent (i) an Investment permitted under a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such transaction and any prepayments to be made in connection therewith pursuant to Section 8.022.05, the Loan Parties would be in compliance with the provisions of Article II hereof concerning the Total Revolving Outstandings and Total Facility Outstandings, the covenant set forth in Section 8.02(f) and the financial covenants set forth in and Section 8.11 (regardless of whether Section 8.11 is in effect or the Closing Date Term Loan Facility or Revolving Credit Facility have been Fully Satisfied) as of the most recent calendar quarter end with respect to which the Administrative Agent has received the Required Financial Information and (ii) a Lien permitted under Section 8.01 certificate of a Responsible Officer of the Parent specifying the anticipated date of such Disposition, briefly describing the asset(s) to be sold or Section 8.04(a) otherwise disposed of and setting forth the value of such assets, the aggregate consideration and the Net Cash Proceeds to be received for such assets in connection with such Disposition and certifying that no Default or (b), or (iii) a Restricted Payment permitted under Section 8.06Event of Default then exists;
(c) Dispositions for fair market value of equipment or real property the Loan Parties, to the extent that required by Section 2.05(b), prepay the Loans (iand Cash Collateralize L/C Obligations) in the amount and as of the date required pursuant to such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertysection;
(d) for all Dispositions of property Borrowing Base Properties following (or occurring concurrently with) the initial Disposition of a Borrowing Base Property hereunder, such Disposition has been approved in writing by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerRequired Lenders;
(e) any Disposition of assets or stock of to the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are extent not applied in accordance with Section 2.06(d8.05(c);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each Net Cash Proceeds derived from any such Disposition are applied to Indebtedness or otherwise reinvested in a manner not prohibited hereunder or a binding commitment to so reinvest is entered into within three hundred sixty (360) days following the receipt of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to such Net Cash Proceeds by the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing DateLoan Parties;
(f) immediately following such Disposition results from a casualty or condemnation in respect of Disposition, there shall exist at least two (2) hotel Borrowing Base Properties that continue to fully qualify as such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthe terms of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.), Credit Agreement (Ryman Hospitality Properties, Inc.), Amendment No. 1 and Joinder Agreement (Ryman Hospitality Properties, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of used, surplus, obsolete, unproductive or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned the Borrower or to another Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a GuarantorDomestic Obligor, either (i) the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets Domestic Obligor or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets of the Domestic Obligors after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith) constitutes 75% or more of the book value of all assets of KBR and its Wholly-Owned Restricted Subsidiaries on a consolidated basis as of the Person(s)) Disposed end of in reliance on this clause the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01;
(e) shall not exceed $100,000,000 after the Closing DateDispositions permitted by Section 7.04 and Permitted Liens;
(f) such Disposition results from a casualty Dispositions by the Borrower and its Restricted Subsidiaries of assets that are necessary or condemnation advisable, in respect the good faith judgment of such property the Borrower, in order to obtain the approval of any Governmental Authority to consummate or assetsavoid the prohibition or other restrictions on the consummation of any Permitted Acquisition or any Investment permitted hereunder;
(g) such Disposition consists of the sale leases, subleases, licenses or discount of overdue accounts receivable sublicenses granted in the ordinary course of business, but only which could not reasonably be expected to have a Material Adverse Effect;
(h) the sale or other transfer of Qualified Securitization Assets in connection with the compromise securitization thereof and/or factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Borrower or collection thereof; orany Restricted Subsidiary, within the limits set forth in Section 7.02(f);
(hi) Dispositions of cash and Cash Equivalents;
(j) Dispositions of assets within 365 days after the acquisition thereof if such assets are outside the principal business areas to which the assets acquired, taken as a whole, relate;
(k) in order to collect receivables in the ordinary course of business, resolve disputes that occur in the ordinary course of business or engage in transactions with government agencies in the ordinary course of business, Disposition of, discount or otherwise compromise of for less than the face value thereof, notes or accounts receivable, so long as no such Disposition, discount or other compromise gives rise to any Indebtedness, any Lien on any note or account receivable, or is made as part of any accounts receivable securitization program;
(l) Dispositions of shares of Equity Interests of any of its Subsidiaries in order to qualify members of the board of directors or equivalent governing body of any such Subsidiary if required by applicable Law;
(m) Dispositions of condemned property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and Dispositions of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(n) Dispositions by the Borrower or any of its Restricted Subsidiaries of Equity Interests in (and assets of) Unrestricted Subsidiaries held by the Borrower or any of its Restricted Subsidiaries;
(o) the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(p) lapse, abandonment or other Disposition of intellectual property, that is in the reasonable business judgment of the Borrower, no longer used or useful in the conduct of its business or otherwise uneconomical to prosecute or maintain, in each case with respect to all of the foregoing in the ordinary course of business;
(q) Dispositions not otherwise permitted pursuant to this Section 7.05; provided that:
(i) at the time of such Disposition, no Default or Event of Default shall exist or would result from such Disposition except if such Disposition is made pursuant to an agreement entered into at a time when no Default or Event of Default exists,
(ii) such Disposition is made for fair market value (as reasonably determined by the Borrower and measured as of Accounts the date a legally binding commitment for such Disposition was entered into),
(iii) the consideration received shall be no less than 75% in cash, Cash Equivalents and/or Designated Non-Cash Consideration (with no more than 25% of the aggregate consideration being in the form of Designated Non Cash Consideration, as such percentages are measured as of the date a legally binding commitment for such Disposition was entered into, and
(iv) Net Cash Proceeds thereof are applied in accordance with Section 2.05(b);
(r) any Exempt Sale and related Leaseback Transaction;
(s) the disposition, termination or unwinding of Swap Obligations permitted hereunder or any Permitted Bond Hedge Transaction permitted hereunder;
(t) Dispositions by the Borrower or any Restricted Subsidiary of any Disqualified Stock (including any Permitted Convertible Indebtedness) to the extent permitted under Section 7.02;
(u) Dispositions by the Borrower or any Restricted Subsidiary of any Permitted Warrant Transaction substantially concurrently with any issuance or sale of Permitted Convertible Indebtedness permitted hereunder;
(v) Dispositions by the Borrower or any Restricted Subsidiary of its Equity Interests (excluding Disqualified Stock) to the extent not constituting a Change of Control;
(w) Dispositions by any Restricted Subsidiary of its Equity Interests constituting directors’ qualifying shares or share or interests required to be held by foreign nationals or other third parties to the extend required by applicable law;
(x) any swap of assets in exchange for services or assets by the Borrower or any Restricted Subsidiary in exchange for services or assets of the same type in the ordinary course of business of comparable or greater value or usefulness to the business of the Borrower and is its Subsidiaries as a whole, as determined in good faith by the management of the Borrower; and
(y) Dispositions by the Borrower or any Restricted Subsidiary of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements. provided, however, that any Disposition pursuant to this Section 7.05 (other than pursuant to clauses (a), (d), (j), (l), (o) or (p)) shall be for no less than the fair market value of such property at the time of such Disposition (as reasonably determined by the Borrower). For the purposes of Subsection 7.05(q), the following shall be deemed to be cash: (1) the assumption of Indebtedness of the Borrower (other than Disqualified Stock of the Borrower) or any Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Disposition, (2) Indebtedness of any Restricted Subsidiary that is no longer a Permitted Receivables TransactionRestricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (3) any securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or Restricted Subsidiary into cash, to the extent of the cash received in that conversion, within one hundred eighty (180) days following the closing of such Disposition.
Appears in 3 contracts
Samples: Credit Agreement (Kbr, Inc.), Credit Agreement (Kbr, Inc.), Credit Agreement (Kbr, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
unless (a) at least seventy-five percent (75%) of the consideration paid in connection therewith shall be cash or Investment Cash Equivalents that is received contemporaneous with the consummation of such Disposition and the Total Consideration paid shall be in an amount not less than the fair market value (as reasonably determined by the Borrower) of the Property disposed of, (b) if such transaction is a Sale and Leaseback Transaction, such transaction is not prohibited by the terms of Section 9.14, (c) 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 9.5 or receivables that are being sold because the selling party reasonably believes that such receivables will be difficult or expensive to collect, (d) the aggregate net book value of all of the assets sold or otherwise disposed of by the Borrower and its Subsidiaries in all Dispositions shall not, as of the date of any such Disposition, exceed (i) in any period of four Fiscal Quarters ending in the ordinary course of its business (and neither constitutes a Fiscal Quarter in which such Disposition of all or a substantial part is made, an amount equal to 10% of the Borrower’s Total Assets as of the date of the most recent quarterly financial statements delivered pursuant to Section 8.1 and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) during the term of this Agreement, 20% of the Borrower’s Total Assets as of the date of the most recent quarterly financial statements delivered pursuant to Section 8.1; provided, however, that Dispositions for which the Total Consideration paid is less than $1,000,000 shall not be included for purposes of the calculation set forth in clause (d) and (e) the sale of the Orbital Launch Support Assets. Any assets subject to a Lien disposition permitted under this Section 8.01 9.5 or the definition of “Disposition” permitted hereby shall be released from any Lien pursuant Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property11.9, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on agrees to execute such new or replacement property;
(d) Dispositions of property release documentation as may be reasonably requested by the Borrower or any Restricted Subsidiary to evidence such release; provided further, that the Administrative Agent shall have received a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock certificate of a Restricted Subsidiary Responsible Officer certifying that no Default or Event of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower Default shall have occurred or a Guarantor, the transferee thereof must be a Guarantor or, subject continuing (before and after giving effect to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) and that such Disposition is for fair market value and:
(i) at least 75% permitted under the terms of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionAgreement.
Appears in 3 contracts
Samples: Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbe abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor orLoan Party, subject (ii) to the limitation aboveextent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the Borrowertransfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted (with respect other than by reference to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s7.05(e)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateby Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsCash Equivalents;
(g) such Disposition consists 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 sale Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or discount non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of overdue such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or;
(hk) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) so long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $60,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of Accounts such Disposition, to the extent that the Borrower and related each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $150,000,000 and (y) 25.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $45,000,000 and (y) 7.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) the Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and leases and settle or waive contractual or litigation claims in the ordinary course of business;
(p) Dispositions of assets (including Equity Interests) acquired in connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(q) any swap of assets in exchange for services or other assets of comparable or greater fair market value useful to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) Dispositions of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(t) Dispositions conducted in connection with any Reorganization;
(u) [reserved];
(v) Dispositions conducted in connection with a REIT Conversion Transaction for so long as the Borrower (or its applicable parent entity) is made pursuing a REIT Election in good faith and the REIT Conversion Transaction Requirement has been satisfied; and
(w) any Disposition by the Borrower or a Restricted Subsidiary of the Equity Interests of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Permitted Receivables TransactionReorganization. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbe abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor orLoan Party, subject (ii) to the limitation aboveextent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the Borrowertransfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted (with respect other than by reference to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s7.05(e)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateby Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsCash Equivalents;
(g) such Disposition consists 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 sale Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or discount non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of overdue such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or;
(hk) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) So long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $55,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of Accounts such Disposition, to the extent that the Borrower and related each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $100,000,000 and (y) 17.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $30,000,000 and (y) 5.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) The Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and leases and settle or waive contractual or litigation claims in the ordinary course of business;
(p) Dispositions of assets (including Equity Interests) acquired in connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Borrower and is the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(q) any swap of assets in exchange for services or other assets of comparable or greater fair market value useful to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) [reserved];
(t) any “fee in lieu” or other Disposition of assets to any Governmental Authority that continue in use by the Borrower or any Restricted Subsidiary, so long as the Borrower or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee;
(u) [reserved];
(v) the Transactions and the Spin-Off may be consummated; and
(w) any Disposition by the Borrower or a Restricted Subsidiary of the Capital Stock of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Permitted Receivables TransactionReorganization. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.)
Dispositions. Make any Disposition or enter into any agreement Prior to the Investment Grade Rating Date, the Borrower will not make, nor permit its Subsidiaries to make any Disposition, Disposition except:
(a) Dispositions of inventory in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition Dispositions of machinery and equipment no longer used or useful in the conduct of business of the Borrower and its Subsidiaries that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06are Disposed of in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property assets to the extent that (i) such equipment Borrower or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertya Subsidiary;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrowerconstituting Investments permitted under Section 6.06;
(e) any Disposition Dispositions of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received accounts receivable in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note the collection or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datecompromise thereof;
(f) such Disposition results from a casualty Dispositions of licenses, sublicenses, leases or condemnation subleases granted to others not interfering in any material respect with the business of such property or assetsthe Borrower and its Subsidiaries;
(g) Dispositions of Cash Equivalents for fair market value;
(h) Dispositions in which: (i) the assets being disposed are used simultaneously in exchange for replacement assets or (ii) the net proceeds thereof are either (A) reinvested within 180 days from such Disposition consists of the sale or discount of overdue accounts receivable in assets to be used in the ordinary course of business, but only in connection with the compromise or collection thereofbusiness of the Borrower and its Subsidiaries and/or (B) used to permanently reduce the Commitments on a dollar for dollar basis; or
(hi) such Disposition is other Dispositions not exceeding in the aggregate for the Borrower and its Subsidiaries (i) 10% of Accounts Consolidated Net Tangible Assets in any fiscal year (measured as of the date of determination) and related assets and is made pursuant to a Permitted Receivables Transaction(ii) 20% of Consolidated Net Tangible Assets during the term of this Agreement.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Western Gas Partners LP), Revolving Credit Agreement (Western Gas Partners LP), Revolving Credit Facility Agreement
Dispositions. Make any Disposition or enter into of any agreement Borrowing Base Property (other than the Disposition of a Borrowing Base Property pursuant to make any Disposition, excepta Permitted PILOT Transaction) unless:
(a) Dispositions the consideration paid in connection therewith shall be in an amount not less than the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part fair market value of the Borrower’s Property disposed of and in cash or Cash Equivalents with such payment to be made contemporaneously with consummation of the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyapplicable transaction;
(b) no later than five (5) Business Days prior to any Disposition that constitutes such Disposition, the Borrower shall have delivered to the Administrative Agent (i) an Investment permitted under a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such transaction and any prepayments to be made in connection therewith pursuant to Section 8.022.05, the Loan Parties would be in compliance with the provisions of Article II hereof concerning the Total Revolving Outstandings, Total Term Loan Outstandings and Total Facility Outstandings and the financial covenants set forth in Sections 8.02(f) and 8.11 as of the most recent calendar quarter end with respect to which the Administrative Agent has received the Required Financial Information and (ii) a Lien permitted under Section 8.01 certificate of a Responsible Officer of the Borrower specifying the anticipated date of such Disposition, briefly describing the asset(s) to be sold or Section 8.04(a) or (b)otherwise disposed of and setting forth the value of such assets, or (iii) a Restricted Payment permitted under Section 8.06the aggregate consideration and the Net Cash Proceeds to be received for such assets in connection with such Disposition;
(c) Dispositions for fair market value of equipment or real property the Loan Parties, to the extent that required by Section 2.05(b), prepay the Loans (iand Cash Collateralize L/C Obligations) in the amount and as of the date required pursuant to such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertysection;
(d) for all Dispositions of property Borrowing Base Properties following (or occurring concurrently with) the Disposition of any other Borrowing Base Property hereunder, such Disposition has been approved in writing by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerSupermajority Lenders;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds derived from any such Disposition are applied to Indebtedness or otherwise reinvested in accordance with Section 2.06(d);
(iii) no Default exists a manner not prohibited hereunder or would exist immediately prior a binding commitment to or after giving pro forma effect to so reinvest is entered into within 360 days following the Disposition;
(iv) to receipt of such Net Cash Proceeds by the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrumentLoan Parties; and
(vf) the aggregate book value of the assets (or assets of the Person) subject to immediately following such Disposition, when taken together with the aggregate book value of all assets there shall exist at least two (or assets of the Person(s)2) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) hotel Borrowing Base Properties that continue to fully qualify as such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthe terms of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Gaylord Entertainment Co /De), Credit Agreement (Gaylord Entertainment Co /De), Credit Agreement (Gaylord Entertainment Co /De)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of surplus, obsolete or worn out property, or any property no longer used or usable in the ordinary conduct of business of the applicable Person, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower any Group Member to (i) another Group Member or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.ii) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borroweran Immaterial Subsidiary;
(e) any Disposition Dispositions permitted by Section 7.04 (other than Section 7.04(c));
(f) non-exclusive licenses of assets or stock IP Rights in the ordinary course of business;
(g) Dispositions by the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
Borrower and Group Members not otherwise permitted under this Section 7.05; provided that (i) at least 75% the time of the consideration for such Disposition, no Default shall exist or would result from such Disposition is cash;
and (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eg) shall not exceed $100,000,000 after in the Closing Dateaggregate, on the date of such Disposition, including any Disposition to be made on such date of determination, twenty percent (20%) of the Borrower’s consolidated total assets as reflected in the most recent annual audit consolidated financial statements delivered pursuant to Section 5.05(a);
(fh) such Disposition results from a casualty Dispositions, discounts or condemnation in respect forgiveness of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in connection with the collection or compromise thereof in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(hi) such the abandonment, termination or other Disposition is of Accounts IP Rights in the ordinary course of business; and
(j) Dispositions or use of cash and related assets and is made cash equivalents in the ordinary course of business or any transaction permitted hereunder; and
(k) Dispositions of accounts receivable pursuant to any transaction set forth in Schedule 7.05(k) hereto (a Permitted Receivables Transaction“Scheduled Disposition”) or any other ongoing receivables sales programs substantially similar to any such Scheduled Disposition and with customary market terms and conditions or otherwise not materially less favorable to the Borrower than such Scheduled Disposition; provided, that the aggregate principal amount of the accounts receivable subject to all such transactions shall not exceed $150,000,000 at any time; provided, however, that any Disposition pursuant to clauses (b), (c), (g) and (j) shall be for fair market value, as reasonably determined by the applicable Person in good faith.
Appears in 2 contracts
Samples: Credit Agreement (Church & Dwight Co Inc /De/), Credit Agreement (Church & Dwight Co Inc /De/)
Dispositions. Make Make, or permit any Subsidiary (other than any Subsidiary Outside Company) to make, any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in a sale by the ordinary course Borrower of its business a Portfolio Company for at least fair market value (and neither constitutes a Disposition as determined by the board of all directors (or a substantial part equivalent governing body) of the Borrower’s ), so long as (i) no Event of Default exists or would result therefrom, (ii) the Borrower has delivered an updated Availability Certificate to the Administrative Agent demonstrating that, after giving effect to such sale and the Restricted Subsidiaries’ assetsapplication of the proceeds thereof, taken as Borrowing Availability shall be in excess of Total Revolving Outstandings, (iii) after giving effect to such sale and the application of the proceeds thereof, the Borrower shall be in compliance on a wholePro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement, nor and the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating such compliance, and (iv) all Intercompany Debt owing by such Portfolio Company is made repaid to the Borrower in connection with a Permitted Receivables Transaction) or cash in full at the time of obsolete or worn out propertythe closing of such sale;
(b) any Disposition a going-public transaction consummated by a Portfolio Company or a transaction entered into by the Borrower that constitutes results in a sale or other disposition of a portion of its Equity Interests in a Portfolio Company for at least fair market value (as determined by the board of directors (or equivalent governing body) of the Borrower), in each case so long as (i) such Portfolio Company is reclassified as an Investment permitted under Section 8.02Outside Company upon the consummation of such transaction, (ii) a Lien permitted under Section 8.01 no Event of Default exists or Section 8.04(a) or (b)would result therefrom, or (iii) the Borrower has delivered an updated Availability Certificate to the Administrative Agent demonstrating that, after giving effect to such transaction, to the application of the proceeds thereof and to the applicable Portfolio Company constituting an Outside Company, Borrowing Availability shall be in excess of Total Revolving Outstandings, (iv) after giving effect to such transaction, to the application of the proceeds thereof and to the applicable Portfolio Company constituting an Outside Company, the Borrower shall be in compliance on a Restricted Payment permitted under Pro Forma Basis with the covenants set forth in Section 8.067.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement, and the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating such compliance, and (v) all Intercompany Debt owing by such Portfolio Company is repaid to the Borrower in cash in full upon the consummation of such transaction;
(c) Dispositions a sale by the Borrower of an Outside Company for at least fair market value (as determined by the board of equipment directors (or real property to equivalent governing body) of the extent that Borrower) and sales and dispositions by the Borrower of Equity Interests in Outside Companies for at least fair market value (ias determined by the board of directors (or equivalent governing body) such equipment or real property is exchanged for credit against of 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 equipment or real propertyBorrower), and in each case if where the disposed property constituted Collateral then consideration paid in connection therewith is at least 80% cash or Cash Equivalents paid contemporaneously with consummation of the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertytransaction;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower[reserved]; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;and
(e) any Disposition sales and dispositions of assets by any Portfolio Company for at least fair market value (as determined by the board of directors (or stock equivalent governing body) of the Subsidiariessuch Portfolio Company), so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% no Event of the consideration for such Disposition is cash;
Default exists or would result therefrom, (ii) the Net consideration paid in connection therewith is at least 80% cash or Cash Proceeds are applied in accordance Equivalents paid contemporaneously with Section 2.06(d);
consummation of the transaction, (iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate net book value of all assets (or assets of the Person(s)) Disposed assets sold or otherwise disposed of by any Portfolio Company in reliance on all such transactions in any fiscal year pursuant to this clause (e) shall not exceed $100,000,000 after an amount equal to 35% of the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect aggregate net book value of the tangible assets of such property or assets;
(g) such Disposition consists Portfolio Company as of the last day of the immediately prior fiscal year, (iv) the aggregate net book value of all of the assets sold or otherwise disposed of by all Portfolio Companies in all such transactions in any fiscal year pursuant to this clause (e) shall not exceed an amount equal to 15% of the aggregate net book value of the combined tangible assets of all Portfolio Companies as of the last day of the immediately prior fiscal year, and (v) after giving effect to such sale or discount disposition and to the application of overdue accounts receivable the proceeds thereof, the Borrower shall be in the ordinary course of business, but only in connection compliance on a Pro Forma Basis with the compromise or collection thereof; or
(h) covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement, and the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactioncompliance.
Appears in 2 contracts
Samples: Credit Agreement (Compass Group Diversified Holdings LLC), Credit Agreement (Compass Group Diversified Holdings LLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(ai) Dispositions any Group Company may sell Inventory in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 Dispositions of obsolete, worn out, surplus, damaged, idled, unmerchantable or Section 8.04(a) otherwise unsaleable assets, whether now owned or (b)hereafter acquired, or in the ordinary course of business;
(iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (iA) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(div) Dispositions of property by the Borrower or any Restricted Subsidiary to any Loan Party or to a whollyWholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerOwned Subsidiary; provided that if the transferor of such property is the Borrower or a GuarantorLoan Party, the transferee thereof must be a Guarantor or, subject Loan Party except that Dispositions of assets (other than Accounts or Inventory as such terms are defined in the Security Agreement) by any Loan Party to the limitation above, the Borrowerany Subsidiary which is not a Loan Party shall be permitted in an aggregate amount not to exceed $25,000,000;
(ev) Dispositions permitted by Sections 7.01, 7.03, 7.04 and 7.06;
(vi) any Disposition Borrower and its Subsidiaries may liquidate, use or sell cash, Cash Equivalents and Foreign Cash Equivalents;
(vii) Holdings or any Subsidiary of assets any Borrower may sell or stock dispose of the Subsidiaries, so long as (Equity Interests in Holdings or such Subsidiary to qualify directors where required by applicable Law or to satisfy other requirements of applicable Law with respect to each such Disposition) such Disposition is for fair market value and:the ownership of Equity Interests in Foreign Subsidiaries;
(iviii) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Group Companies;
(ix) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(x) Dispositions in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the applicable Borrower, are not material to the conduct of the business of the Group Companies;
(xi) Dispositions by the Borrowers and their Subsidiaries not otherwise permitted under this Section 7.05; provided that (A) at least 75% of the consideration for such Disposition therefor is cash;
cash or Cash Equivalents; (iiB) in the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to case of Dispositions by the Disposition;
(iv) to the extent not otherwise granted thereinLoan Parties, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book fair market value of all assets (sold or assets otherwise disposed of the Person(s)) Disposed of in all such transactions in reliance on this clause (exi) shall not exceed (I) the greater of (1) $100,000,000 50,000,000 and (2) 3.5% of Consolidated Total Assets as of the date of such Disposition in any fiscal year of Holdings or (II) the greater of (1) $150,000,000 and (2) 10% of Consolidated Total Assets on the date of such Disposition, in the aggregate from and after the Closing Effective Date; and (C) no Event of Default shall have occurred and be continuing immediately before or immediately after giving effect to such transaction;
(fxii) Dispositions of Receivables pursuant to Factoring Arrangements, so long as (A) such Disposition results from Receivables are sold at no less than the fair market value thereof (which may include a discount customary for transactions of this type) and at least 90% of the consideration therefor is cash or Cash Equivalents and (B) any such Factoring Arrangement constitutes a “true sale” transaction and not a financing transaction;
(xiii) transfers of condemned real property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of personal properties that have been subject to a casualty or condemnation in respect to the respective insurer of such property or assetsits designee as part of an insurance settlement;
(gxiv) such Disposition consists cancellations of intercompany Indebtedness among Holdings and its Subsidiaries;
(xv) the Lead U.S. Borrower may sell the Equity Interest, or all or substantially all of the sale assets, of Masonite (Africa) Limited;
(xvi) sales or discount dispositions of overdue accounts receivable Equity Interests in existing Joint Ventures;
(xvii) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business, but only in connection with the compromise or collection thereof; orand
(hxviii) such Disposition is the sale, transfer or disposition of Accounts the real property located in Easton, Hearne, Watseka, Los Banos, Sacramento, Farmington Hills, South Bend, Astatula, Ukaih, Limon/Guapiles, Hungary, Costa Rica and related assets and is made pursuant to a Permitted Receivables TransactionHedingham.
Appears in 2 contracts
Samples: Credit Agreement (Masonite International Corp), Credit Agreement (Masonite International Corp)
Dispositions. Make The Borrower will not, and shall cause each Restricted Subsidiary not to, directly or indirectly, make any Disposition (including pursuant to a Division) or enter into any agreement to make any DispositionDisposition (including pursuant to a Division) unless such agreement includes an express condition precedent to closing that the Borrower or the applicable Restricted Subsidiary shall have obtained all requisite consents under this Agreement, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower any Guarantor to any other Guarantor or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition Dispositions permitted by Section 8.04;
(f) Dispositions of assets or stock property (other than Equity Interests of a Loan Party) having a Fair Market Value of the Subsidiaries, so long as greater of (with respect to each such Dispositionx) $15,000,000 and (y) 5.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such Disposition is for fair market value or (in either case) less in any single transaction or series of related transactions;
(g) licenses and sub-licenses by the Borrower or any Restricted Subsidiary, in each case on a non-exclusive basis, of patents, trademarks, copyrights and other intellectual property rights in the ordinary course of business; and
(h) Dispositions not otherwise permitted under this Section 8.05; provided that:
(i) at least 75% the time of the consideration for such Disposition is cashDisposition, no Event of Default shall exist or would result from such Disposition;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d)Borrower or the applicable Restricted Subsidiary receives consideration at the time of such Disposition at least equal to the Fair Market Value of the property subject to such Disposition;
(iii) no Default exists at least 75% of such consideration consists of cash or would exist immediately prior Cash Equivalents; provided that with respect to this clause (iii):
(A) the assumption of Indebtedness of the Borrower or after a Restricted Subsidiary which is not subordinated to the Obligations shall be deemed to be Cash Equivalents if the Borrower, such Restricted Subsidiary and all other Restricted Subsidiaries, to the extent any of the foregoing are liable with respect to such Indebtedness, are expressly released from all liability for such Indebtedness by the holder thereof in connection with such Disposition;
(B) any securities or notes received by the Borrower or such Restricted Subsidiary, as the case may be, from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 30 days of the date of such Disposition shall be deemed to be Cash Equivalents; and
(C) any Designated Non-Cash Consideration received in respect of such Disposition shall have 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 (x) $20,000,000 and (y) 7.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such Disposition, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving pro forma effect to the Dispositionsubsequent changes in value;
(iv) the Net Cash Proceeds of such Disposition are applied and/or Reinvested to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this required by Section 8.05(e) that is evidenced by a promissory note or other written instrument2.05(d); and
(v) the aggregate book value no Equity Interests of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) any Restricted Subsidiary that is a Guarantor may be Disposed of in reliance on pursuant to this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is unless all of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionits Equity Interests are so Disposed of.
Appears in 2 contracts
Samples: Credit Agreement (Everi Holdings Inc.), Credit Agreement (Everi Holdings Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of excess, surplus, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or similar replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect the Company or to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borroweranother Subsidiary; provided that if the transferor of such property is the Borrower or a Subsidiary Guarantor, the transferee thereof must either be the Company or a Guarantor or, subject to the limitation above, the BorrowerSubsidiary Guarantor;
(e) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted by Section 7.05 (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with other than Section 2.06(d7.05(e);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) Dispositions of assets within 365 days after the acquisition thereof if (i) such Disposition results from assets are outside the principal business areas to which the assets acquired, taken as a casualty whole, relate, and (ii) such assets are sold or condemnation in respect disposed of such property for Cash or assetsany other consideration which represents the fair market value thereof;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in order to collect receivables in the ordinary course of business, but only resolve disputes that occur in connection the ordinary course of business or engage in transactions with government agencies in the ordinary course of business, the Company and its Subsidiaries may Dispose of, discount or otherwise compromise for less than the face value thereof, notes or collection thereof; oraccounts receivable, so long as no such Disposition, discount or other compromise gives rise to any Indebtedness, any Lien on any note or account receivable, or is made as part of any account receivable securitization program;
(h) Dispositions of shares of Equity Interests of any of its Subsidiaries in order to qualify members of the board of directors or equivalent governing body of any such Subsidiary if required by applicable Law;
(i) Dispositions of condemned property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and Dispositions of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(j) Dispositions by the Company and its Subsidiaries of property pursuant to sale-leaseback transactions;
(k) Dispositions of Cash and cash equivalents;
(l) non-exclusive licenses or sublicenses of IP Rights in the ordinary course of business and which do not materially interfere with the business of the Company and its Subsidiaries;
(m) Dispositions by the Company or any of its Subsidiaries of assets in an amount not to exceed $20,000,000 in any single transaction or related series of transactions; and
(n) additional Dispositions by the Company and its Subsidiaries not to exceed an aggregate amount in any fiscal year equal to the Asset Sale Amount in effect for such fiscal year; provided that (i) the consideration received for such Disposition is shall be in an amount at least equal to the fair market value thereof; (ii) no Default shall have occurred or be continuing after giving effect thereto; and (iii) if applicable, the proceeds of Accounts and related assets and is such Dispositions shall be applied as required by Section 2.05(b); provided further that if any Cash proceeds from a Disposition made pursuant to this subpart (n) that are not required to be used to make a Permitted Receivables Transactionprepayment pursuant to Section 2.05(b) are reinvested in assets used or useful in the business of the Company and its Subsidiaries during such year, the amount of such Cash reinvestment shall increase the Asset Sale Amount for the year in which such reinvestment is made.
Appears in 2 contracts
Samples: Credit Agreement (Urs Corp /New/), Credit Agreement (Urs Corp /New/)
Dispositions. Make any Disposition (other than any property which, at the time of any Disposition, constitutes Unrestricted Margin Stock) or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower Company or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject its Subsidiaries to the limitation above, the BorrowerCompany or any of its Subsidiaries;
(e) any Disposition Dispositions listed on Schedule 7.04;
(f) Dispositions pursuant to a Permitted Securitization;
(g) Dispositions by the Company and its Subsidiaries of assets or stock of property pursuant to sale-leaseback transactions; and
(h) Dispositions by the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
Company and its Subsidiaries not otherwise permitted under this Section 7.04; provided that (i) at least 75% the time of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) Disposition, no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
result from such Disposition and (iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vii) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eh) in any period of twelve consecutive months after the Closing Date shall not exceed $100,000,000 after 10% of the Closing Date;
book value of the total consolidated assets of the Company and its Subsidiaries (fincluding, if the Acquisition is consummated, the Target and its Subsidiaries) such Disposition results from a casualty or condemnation in respect accordance with GAAP as at the beginning of such property or assets;
twelve-month period (g) such Disposition consists based on the most recent financial statements of the sale or discount Company prior to the beginning of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made twelve-month period that have been delivered pursuant to Section 6.01 and, to the extent that such financial statements do not include the consolidated assets of the Target and its Subsidiaries, calculated on a Permitted Receivables TransactionPro Forma Basis to include (if the Acquisition has been consummated) the assets of the Target and its Subsidiaries based on the most recent available financial statements of the Target).
Appears in 2 contracts
Samples: Credit Agreement (Thermo Fisher Scientific Inc.), Credit Agreement (Thermo Fisher Scientific Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or assets, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes Dispositions of inventory (iincluding Hydrocarbons sold after severance) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property or other asset (other than (x) Oil and Gas Properties or (y) Investments in Subsidiaries) to the extent that (i) such equipment equipment, property or real property other asset is exchanged for credit against the purchase price of similar replacement equipment, property or other asset or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real equipment, property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyother asset;
(d) Dispositions of property or assets by any Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect or by the Borrower to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerany wholly-owned Subsidiary; provided that if the transferor of such property or assets is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets Dispositions permitted by Section 7.04(a), (b) or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(dd);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such a Disposition results from a casualty or condemnation for fair value of Oil and Gas Properties in respect of such property or assetsthe Piceance Basin;
(g) Dispositions (including Casualty Events) of Oil and Gas Properties which are sold or otherwise transferred for fair consideration to Persons who are not Affiliates of Borrower (2) farmouts of undeveloped acreage and assignments in connection with such Disposition consists farmouts or the abandonment, farm-out, the exchange and (3) Dispositions of Oil and Gas Properties which are not included in the sale or discount of overdue accounts receivable most recently delivered Engineering Report in the ordinary course of business, but only provided that (i) no Event of Default exists at the time of and after giving effect to any such sale or other transfer of Collateral (other than Defaults that will be cured upon the application of the proceeds of such sale or other transfer), (ii) the Borrower must first give notice to the Administrative Agent of any such sale, (iii) if the Oil and Gas Properties so sold or transferred, or all equity of the Subsidiary owning the Oil and Gas Properties so sold or transferred, on a cumulative basis since the then most recent Determination Date, represent more than ten percent of the total Attributed Value of all of the Proved Reserves of the Engineered Oil and Gas Properties, as determined in connection the most recently delivered Engineering Report, the sale or other transfer may not be made until Administrative Agent and the Lenders have made a Special Determination as contemplated in Section 2.05(b), and (iv) concurrently with such sale or other transfer the compromise or collection thereofBorrower must pay in full any Borrowing Base Deficiency that results from such Special Determination; orand
(h) Dispositions of interest in Oil and Gas Properties in respect of Immaterial Title Deficiencies in order to discharge such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionImmaterial Title Deficiencies or an obligation giving rise thereto.
Appears in 2 contracts
Samples: Credit Agreement (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Dispositions. Make any Disposition or enter into any agreement (a) Prior to the time the Borrower obtains an Investment Grade Rating from two of S&P, Xxxxx’x and Fitch, a Loan Party will not make, nor permit its Subsidiaries to make any Disposition, Disposition except:
(ai) Dispositions of inventory in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) Dispositions of machinery and equipment no longer used or useful in the conduct of business of a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or Loan Party and its Subsidiaries that are Disposed of in the ordinary course of business;
(iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary assets to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property assets is the Borrower or a GuarantorLoan Party, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the DispositionLoan Party;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each Dispositions of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received accounts receivable in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note the collection or other written instrument; andcompromise thereof;
(v) the aggregate book value Dispositions of the assets (licenses, sublicenses, leases or assets of the Person) subject to such Disposition, when taken together subleases not interfering in any material respect with the aggregate book value business of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datea Loan Party and its Subsidiaries;
(fvi) such Disposition results from a casualty Dispositions of cash or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable Cash Equivalents in the ordinary course of business;
(vii) Dispositions in which: (i) the assets being disposed of are exchanged, but only within 180 days of such Disposition, for replacement assets or (ii) the net proceeds thereof are either (A) reinvested within 180 days from such Disposition in connection assets to be used in the ordinary course of the business of the Borrower and its Subsidiaries and/or (B) used to permanently reduce the Aggregate Revolving Commitments on a dollar for dollar basis;
(viii) asset swaps with EQT Corporation or any of its Subsidiaries;
(ix) Dispositions permitted by Sections 7.04, 7.05, and 7.10;
(x) 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 a Loan Party or any Subsidiary;
(xi) Dispositions of Incremental Term Loan Cash Collateral for fair market value and in accordance with the compromise or collection thereofapplicable Incremental Term Loan Agreement; orand
(hxii) such other Dispositions not exceeding in the aggregate for all Loan Parties and their Subsidiaries (i) 10% of Consolidated Net Tangible Assets in any fiscal year, measured as of the date of determination or (ii) 20% of Consolidated Net Tangible Assets over the term of this Agreement, measured as of the date of determination.
(b) From and after the time the Borrower receives an Investment Grade Rating from two of S&P, Xxxxx’x and Fitch, a Loan Party will not make, nor permit its Subsidiaries to make, any Disposition is (whether in one transaction or a series of Accounts transactions) that constitutes all or substantially all of the assets of the Loan Parties and related assets and is made pursuant to their Subsidiaries, taken as a Permitted Receivables Transactionwhole.
Appears in 2 contracts
Samples: Credit Agreement (EQT Midstream Partners, LP), Credit Agreement (EQT Midstream Partners, LP)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property (other than Vessels), whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the any Subsidiary to any Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be a Guarantor or, subject to the limitation above, the BorrowerBorrower or a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) After delivery, any Borrower may (i) Dispose of any Vessel it owns, but only if (A) the Net Cash Proceeds of such Disposition are applied in accordance with the provisions of Section 2.05(b)(i), (B) the Disposition of such Vessel is effected pursuant to an arm’s length transaction for fair market value, (C) the Disposition of such Vessel is made in the ordinary course of business, (D) the aggregate book value of all Dispositions pursuant to clauses (f) through (h) of this Section 7.05 in any fiscal year shall not exceed ten percent (10%) of the book value of the total assets of Holdings and its Subsidiaries identified on the most recently filed 10-K of Holdings, (E) if the sum of the cash and Cash Equivalents received in connection with such Disposition equals an amount less than the appraised value of such Vessel as indicated in the most recent Valuation delivered to the Administrative Agent pursuant to Section 6.19, then after giving effect to any such Disposition and any prepayment required in connection therewith, the Permitted Disposition Threshold (as determined by reference to the most recently delivered Valuations) shall be greater than or equal to the Total Outstandings at the time of such Disposition, and (F) no Default or Event of Default has occurred and is continuing as of the date of such Disposition or would result therefrom or (ii) lease or charter the Vessel it owns pursuant to a Philippine Charter acceptable to the Administrative Agent so long as such lease or such charter is assigned as collateral security to the Administrative Agent for the benefit of the Secured Parties pursuant to documentation in form and substance satisfactory to the Administrative Agent;
(g) Disposition of assets or stock of the Subsidiaries, so long as constituting Collateral (with respect to each such Dispositionother than Vessels); provided that (i) such Disposition is effected pursuant to an arm’s length transaction for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
value, (ii) the Net Cash Proceeds of such Disposition are applied in accordance with the provisions of Section 2.06(d2.05(b)(v);
, (iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable is made in the ordinary course of business, but only and (iv) the aggregate book value of all Dispositions pursuant to clauses (f) through (h) of this Section 7.05 in connection with any fiscal year shall not exceed ten percent (10%) of the compromise or collection thereofbook value of the total assets of Holdings and its Subsidiaries identified on the most recently filed quarterly report on form 10-K of Holdings; orand
(h) Disposition of assets not constituting Collateral (including, for the avoidance of doubt, vessels); provided that (i) such Disposition is effected pursuant to an arm’s length transaction for fair market value, (ii) the Net Cash Proceeds of Accounts and related assets and such Disposition are applied in accordance with the provisions of Section 2.05(b)(vi), (iii) such Disposition is made in the ordinary course of business, and (iv) the aggregate book value of all Dispositions pursuant to a Permitted Receivables Transaction.clauses (f) through (h) of this Section 7.05 in any fiscal year shall not exceed ten percent (10%) of the book value of the total assets of Holdings and its Subsidiaries identified on the most recently filed quarterly report on form 10-K of Holdings;
Appears in 2 contracts
Samples: Credit Agreement (TBS International PLC), Credit Agreement (TBS International PLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of 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) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower to any Subsidiary, or by any Restricted Subsidiary to the Borrower or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerGuarantor; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions of assets or stock accounts receivable for purposes of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datecollection;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable investment securities and cash equivalents in the ordinary course of business, but only in connection with the compromise or collection thereof;
(g) Dispositions permitted by Section 7.04; orand
(h) Dispositions by the Borrower and its Subsidiaries of property acquired after the date hereof in Permitted Acquisitions; provided that (i) the Borrower identifies any such Disposition is assets to be divested in reasonable detail in writing to the Administrative Agent on or before the closing date of Accounts such Permitted Acquisition and related (ii) the fair market value of the assets to be divested in connection with any Permitted Acquisition (as reasonably determined by the board of directors of the Borrower) do not exceed an amount equal to twenty-five percent (25%) of the total cash and is made pursuant to a non-cash consideration (as determined in accordance with clause (f) of the definition of “Permitted Receivables TransactionAcquisition”) for such Permitted Acquisition.
Appears in 2 contracts
Samples: Credit Agreement (Diamond Foods Inc), Credit Agreement (Diamond Foods Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Parent Guarantor, the Borrowers and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Parent Guarantor, any Borrower or any Restricted Subsidiary to a wholly-owned the Parent Guarantor, any Borrower or any other Restricted Subsidiary (other than including any such Disposition effected pursuant to a Receivables Co.) ormerger, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerliquidation or dissolution); provided that if the transferor of such property is the Borrower a Guarantor or a Guarantor, Borrower then (i) the transferee thereof must either be a Borrower or a Guarantor or, subject or (ii) to the limitation aboveextent such transaction constitutes an Investment, the Borrowersuch transaction is permitted under Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(e) Dispositions permitted by Section 7.02, Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) Dispositions by the Parent Guarantor, any Disposition Borrower or any Restricted Subsidiary of assets or stock of property pursuant to sale-leaseback transactions; provided that (i) the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:of all property so Disposed of shall not exceed $200,000,000 from and after the Closing Date, (ii) the purchase price for such property shall be paid to the relevant Borrower or such Restricted Subsidiary for not less than 75% cash consideration and (iii) all Net Cash Proceeds resulting from the Disposition pursuant to this Section 7.05(f) of property with a fair market value in excess of $100,000,000 shall be applied to prepay Term Loans pursuant to Section 2.05(b)(ii);
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(i) at least 75% leases, subleases, licenses or sublicenses of property which do not materially interfere with the business of the consideration for Parent Guarantor, the Borrowers and the Restricted Subsidiaries;
(j) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) Dispositions of property by the Parent Guarantor, any Borrower or any Restricted Subsidiary not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition is cash;
and (ii) the Net Cash Proceeds are applied sale price for such property (if in accordance with Section 2.06(d)excess of $20,000,000) shall be paid to the Parent Guarantor, such Borrower or such Restricted Subsidiary for not less than 75% cash consideration;
(iiil) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) Dispositions of Investments in Joint Ventures, to the extent not otherwise granted thereinrequired by, or made pursuant to buy/sell arrangements between the Borrower agrees that it willjoint venture parties forth in, joint venture arrangements and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to similar binding arrangements in effect on the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrumentClosing Date; and
(vm) Dispositions in the aggregate book value ordinary course of business consisting of the assets (or assets abandonment of IP Rights which, in the reasonable good faith determination of the Person) subject to such DispositionParent Guarantor or any Restricted Subsidiary, when taken together with are uneconomical, negligible, obsolete or otherwise not material in the aggregate book value conduct of all assets its business (or assets of the Person(s)) it being understood and agreed that no Material Intellectual Property may be Disposed of in reliance on this clause (em)); provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Section 7.05(d) and Section 7.05(e)), shall not exceed $100,000,000 after be for no less than the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect fair market value of such property or assets;
(g) at the time of such Disposition consists 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 sale or discount of overdue accounts receivable Liens created by the Loan Documents, and the Administrative Agent is hereby authorized by the Lenders to take any actions deemed appropriate in order to effect the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Warner Chilcott PLC), Credit Agreement (Warner Chilcott PLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, and Dispositions in the ordinary course of business of property (other than Equity Interests) no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02Dispositions of inventory, (ii) a Lien permitted under Section 8.01 goods and products, cash equivalents, cash or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06other immaterial assets in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real propertysimilar property and shall have, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including extent required thereby, complied with the delivery requirements of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertySection 6.12;
(d) Dispositions constituting Restricted Payments permitted by Section 7.07, Permitted Liens and Investments permitted by Section 7.02 (other than Section 7.02(c));
(e) Dispositions of property acquired or constructed by the 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 accounts receivables in connection with the collection or compromise thereof in the ordinary course of business;
(g) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), easements, rights of way or similar rights or encumbrances in each case in the ordinary course of business and which do not secure the payment of Indebtedness (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 Restricted Wholly Owned Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of Borrower that is a Restricted Subsidiary of the Borrower, 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 orand the applicable transferee shall have, subject to the limitation aboveextent required thereby, complied with the Borrowerrequirements of Section 6.12;
(ek) any Dispositions permitted under Section 7.05 (other than Section 7.05(f));
(l) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under clauses (a) through (k) or (m) through (o) of this Section 7.06 (other than a Disposition of assets MLP GP Units or stock IDRs); provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) if the fair market value of the Subsidiariesassets subject to such Disposition exceeds $50,000,000, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) consideration that is at least 75% cash or cash equivalents and (iii) the Borrower is in compliance on a Pro Forma Basis with the Financial Covenant as of the consideration last day of the immediately preceding Test Period for such Disposition is cashwhich a Compliance Certificate has been delivered;
(iim) the Net Cash Proceeds are applied in accordance with Section 2.06(d)[reserved];
(iiin) no Default exists the abandonment, failure to maintain or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note renew or other written instrument; and
(v) the aggregate book value Disposition of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable any IP Rights in the ordinary course of business, but only business or as may be decided by the Borrower in connection with its reasonable judgment or that are not material to the compromise or collection thereofconduct of the business of the Borrower and its Restricted Subsidiaries; orand
(ho) such to the extent allowable under Section 1031 of the Code, any exchange of like kind property (excluding any boot thereon) for use in a Similar Business; provided, however, that any Disposition is of Accounts and related assets and is made pursuant to clause (b), (c), (e), (f), (i) or (l) 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). The Administrative Agent will, at the Borrower’s request and expense, execute a Permitted Receivables Transactionrelease reasonably 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 2 contracts
Samples: Credit Agreement (Targa Resources Corp.), Credit Agreement (Targa Resources Corp.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions a disposition of Cash Equivalents or obsolete, damaged, unnecessary, unsuitable, used or worn out property, equipment or other assets in the ordinary course of business or inventory (or other assets) held for sale in the ordinary course of business and dispositions of property no longer used or useful or economically practicable in the conduct of the business of the Borrower and its Restricted Subsidiaries or the disposition of inventory, goods or other assets in the ordinary course of business (and neither constitutes a Disposition of all or a substantial part no longer useful in the ordinary course of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes Dispositions for the fair market value (as determined at the time of contractually agreeing to such Disposition) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that
(i) an Investment permitted under Section 8.02except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Disposition, by the Borrower or such Restricted Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets, and
(ii) a Lien permitted under Section 8.01 For purposes of clause (i) above, the amount of (A) any liabilities (as shown on the Borrower’s or Section 8.04(athe applicable Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary (bother than liabilities in excess of $10,000,000 that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are terminated, cancelled or otherwise cease to be obligations of the Borrower in connection with such Disposition and, in each case from which the Borrower and all Restricted Subsidiaries have been validly released by all creditors in writing, (B) any securities or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or Restricted Subsidiary into cash (to the extent of the cash received) within 270 days following the closing of such Disposition, (C) any other assets used or useful in the business of the Borrower and its Restricted Subsidiaries or any similar business or and (D) any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in respect of such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not to exceed the greater of (x) $15,000,000 and (y) an amount equal to 15.00% of EBITDA of the Borrower on the date on which such Designated Non-Cash Consideration is received (with the fair market value of each item of Designated Non-Cash Consideration being measured at the Borrower’s option either at the time of contractually agreeing to such Disposition or (iii) a Restricted Payment permitted under Section 8.06at the time received without giving effect to subsequent changes in value), shall be deemed to be cash;
(c) Dispositions for the granting of a Lien permitted by Section 7.01 or the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, pursuant to Section 7.06;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of equipment less than $15,000,000;
(e) any disposition of property or assets, or issuance of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary;
(f) the lease, assignment, sublease, license or sublicense of any real or personal property in the ordinary course of business or consistent with past practice or that does not materially interfere with the business of the Borrower as then in effect;
(g) any issuance, sale, pledge or other disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(h) dispositions arising from foreclosures, condemnations, eminent domain, seizure, nationalization or any similar action with respect to assets, dispositions of property subject to casualty events and (except for purposes of calculating net proceeds) dispositions necessary or advisable (as determined in good faith by the Borrower) in order to consummate any acquisition of any Person, business or assets;
(i) disposition of an account receivable in connection with the collection or compromise thereof;
(j) foreclosures, condemnation, expropriation, forced dispositions, eminent domain or any similar action (whether by deed of condemnation or otherwise) with respect to assets or the granting of Liens not prohibited hereunder, and transfers of any property that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement or upon receipt of the net proceeds of such casualty event the granting of Liens not prohibited hereunder;
(k) the sale, lease, assignment, license or sublease of inventory, equipment, accounts receivable, notes receivable or other current assets held for sale in the ordinary course of business;
(l) any exchange of assets for Permitted Business Assets (including a combination of Permitted Business Assets and a de minimis amount of Cash Equivalents) of comparable or greater market value, as determined in good faith by the Borrower;
(m) the licensing, sublicensing or cross-licensing of intellectual property or other general intangibles;
(n) the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(o) dispositions of Investments (including Equity Interests) in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements or rights of first refusal between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(p) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Permitted Business;
(q) the disposition of any assets (including Equity Interests of a Restricted Subsidiary) (i) acquired after the Closing Date in a transaction permitted hereunder, which assets are not used or useful in the core or principal business of the Borrower and its Restricted Subsidiaries, or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) dispositions of property to the extent that (i) such equipment or real 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 disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(ds) Dispositions any sale and lease-back transaction in an amount not to exceed $25,000,000;
(t) any surrender or waiver of property by contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(u) the unwinding or voluntary termination of any Hedging Obligations;
(v) any disposition in connection with the Transactions; and
(w) the sale, transfer or other disposition of any assets in the TMSA Account. Notwithstanding anything in this Section 7.05 to the contrary, dispositions under this Section 7.05 (except for clauses (i), (k) and (s)) shall only be permitted if (i) no Event of Default exists or would result from such Disposition as of the date of the agreement governing such Disposition (ii) the consideration received for the Disposition shall be in an amount equal to fair market value thereof and (iii) no less than 75% of such consideration shall be paid in cash or Cash Equivalents. In no event shall the Borrower or any Restricted Subsidiary voluntarily dispose (which, for the avoidance of doubt, shall include any such transfers to a wholly-owned Restricted Subsidiary (other than a Receivables Co.an Unrestricted Subsidiary) orof any Specified Intellectual Property to any person who is, solely with respect to Dispositions in the case of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, not the transferee thereof must Borrower or a Guarantor, or in the case of a Non-Guarantor Subsidiary, not the Borrower or a Restricted Subsidiary, other than non-exclusive licenses, sublicenses or cross-licenses of intellectual property or other general intangibles. In the event that a transaction (or any portion thereof) meets the criteria of this Section 7.05 and would also be a Guarantor or, subject to the limitation abovepermitted Restricted Payment or Permitted Investment, the Borrower;
, in its sole discretion, will be entitled to divide and classify such transaction (eor a portion thereof) any as an Disposition of assets permitted hereunder and/or one or stock more of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% types of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists permitted Restricted Payments or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionInvestments.
Appears in 2 contracts
Samples: Credit Agreement (Turning Point Brands, Inc.), Credit Agreement (Turning Point Brands, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business 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) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary Guarantor to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or to another Guarantor that is a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerDomestic Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date[intentionally omitted];
(f) such Disposition results from a casualty or condemnation non-exclusive licenses of IP Rights in respect the ordinary course of such property or assetsbusiness and substantially consistent with past practice for terms not exceeding five (5) years;
(g) such Disposition consists sales or discounts without recourse of the sale or discount of overdue accounts receivable or notes receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(h) leases and subleases of real property entered into by Loan Parties and their Domestic Subsidiaries, as lessors or sublessors, in the ordinary course of business at arm’s length and on market terms;
(i) so long as no Event of Default is then existing or would resulting therefrom, licenses of IP Rights to a present or future franchisee of any Loan Party, subject to franchisee and royalty arrangements entered into on an arm’s length basis and in the ordinary course of business;
(j) Dispositions of the Equity Interests or the assets of any Inactive Subsidiary;
(k) Dispositions of assets not otherwise permitted under clauses (a)-(j) above or clause (l) below not to exceed (A) $10,000,000 in the aggregate for any calendar year and (B) $30,000,000 in the aggregate from and after the Restatement Effective Date; and
(l) Dispositions of property by the Borrower or any Domestic Subsidiary consisting solely of one or more manufacturing or commissary businesses or divisions, which are owned by such Person as of November 28, 2011; provided, however, that (x) any Disposition pursuant to this Section 7.05 (other than clause (d)) shall be for fair market value, (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 clauses (d) and (l)) shall be in the form of cash received on the consummation of such Disposition is and (z) this Section 7.05 shall not apply to treasury stock of Accounts and related assets and is made pursuant the Borrower to a Permitted Receivables Transactionthe extent constituting margin stock (within the meaning of Regulation U of the FRB).
Appears in 2 contracts
Samples: Amendment No. 2 and Reaffirmation of Collateral Documents (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc)
Dispositions. Make The Borrower will not, and will not permit any Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of property no longer used or useful in the business, or obsolete or worn out property in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee must be either the Borrower or a Subsidiary Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) Dispositions permitted by Section 6.03;
(f) leases, non-exclusive licenses, subleases or non-exclusive sublicenses granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any Disposition of assets or stock material respect with the business of the Borrower and its Subsidiaries;
(g) Restricted Payments permitted by Section 6.05 and Investments permitted by Section 6.06; and
(h) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section; provided that such Disposition must (a) be for the fair market value, so long as (b) with respect to each such Disposition) such Disposition is for fair market value and:
(i) any aggregate consideration received in respect thereof in excess of $1,000,000, at least 75% of the consideration for such Disposition is cash;
must consist of cash or Cash Equivalents (ii) with any securities, notes or other obligations or assets received by the Net Borrower or any Subsidiary from such transferee that are converted by such person into cash or Cash Proceeds are applied in accordance with Section 2.06(d);
Equivalents (iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted thereinof the cash or Cash Equivalents received) within one hundred eighty (180) days following the closing of the applicable disposition, the Borrower agrees that it will, treated as cash) and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vc) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on pursuant to this clause (ei) in any fiscal year shall not exceed $100,000,000 after the Closing Date;3,000,000.; and
(fi) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made Dispositions pursuant to a the Permitted Receivables Sale and Leaseback Transaction.
Appears in 2 contracts
Samples: Credit Agreement (TerrAscend Corp.), Credit Agreement (TerrAscend Corp.)
Dispositions. Make (a) Unless otherwise permitted under this Section 7.05, make any Dispositions of any assets or Property during the term of this Agreement out of the ordinary course of business unless the Borrowers will be in compliance, on a Pro Forma Basis, with the covenants set forth in Sections 7.01, 7.02, 7.03, and 7.11 of this Agreement and with all restrictions on Outstanding Amounts contained herein; or
(b) notwithstanding anything contained herein to the contrary, make or permit to occur any Dispositions of any material assets (including, without limitation, capital stock or similar ownership interests) if an Event of Default has occurred and is continuing or if such Disposition would reasonably be expected to result in a Default or an Event of Default (unless the Administrative Agent and Required Lenders have approved such Disposition in writing, such consent to be granted or withheld in the discretion of the Administrative Agent and Lenders);
(c) make any other Disposition or enter into any agreement to make any other Disposition, except:except (in each case, to the extent such Disposition is for no less than fair market value):
(ai) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(diii) Dispositions of property by the any Subsidiary to a Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a GuarantorBorrower, the transferee thereof must either be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value ; and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted thereinDispositions permitted by Section 7.04; provided, the Borrower agrees that it will(y) this Section 7.05 shall not, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(ecase, be deemed to prevent each Borrower from leasing and/or subleasing its property and assets, as lessor or sublessor (as the case may be) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of businessbusiness (in each case, but only to the extent the Borrowers are, following any such transaction, in connection compliance, on a Pro Forma Basis with all of the covenants set forth in this Article VII) and (z) the provisions of Section 1.10 shall, to the extent inconsistent with the compromise or collection thereof; or
(h) such Disposition is terms of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthis Section 7.05, govern Dispositions of Borrowing Base Properties.
Appears in 2 contracts
Samples: Credit Agreement (Government Properties Income Trust), Credit Agreement (Government Properties Income Trust)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of Cash Equivalents and Inventory in the ordinary course Ordinary Course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyBusiness;
(b) (i) Dispositions in the Ordinary Course of Business of property that is obsolete, worn out or no longer useful in the Ordinary Course of Business and (ii) disposition of other assets, in each case for so long as (x) the aggregate fair market value or a book value, whichever is more, of such equipment, fixed assets and other assets does not exceed the greater of (A) $9,000,000 and (B) 15% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in any twelve-month period and (y) all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the applicable intercreditor or subordination provisions or agreement reasonably satisfactory to the Administrative Agent executed or entered into in connection with Subordinated Indebtedness incurred pursuant to Section 7.01(v) and solely to the extent required by a corresponding mandatory prepayment provision in the applicable documentation governing such Subordinated Indebtedness, remitted to the applicable holders of such Subordinated Indebtedness (or administrative agent for such holders) for application in accordance with such corresponding mandatory prepayment provision;
(c) any Disposition that constitutes (i) an Investment permitted under Section 8.027.03, (ii) a Lien permitted under Section 8.01 7.02, (iii) a merger, dissolution, consolidation or liquidation permitted under Section 8.04(a) or (b)7.04, or (iiiiv) a Restricted Payment permitted under Section 8.067.06;
(cd) such Disposition that results from a casualty or condemnation in respect of such property or assets so long as all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the applicable intercreditor or subordination provisions or agreement reasonably satisfactory to the Administrative Agent executed or entered into in connection with Subordinated Indebtedness incurred pursuant to Section 7.01(v) and solely to the extent required by a corresponding mandatory prepayment provision in the applicable documentation governing such Subordinated Indebtedness, remitted to the applicable holders of such Subordinated Indebtedness (or administrative agent for such holders) for application in accordance with such corresponding mandatory prepayment provision;
(e) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business, but only in connection with the compromise or collection of delinquent accounts or other accounts which, in the applicable Loan Party’s or Subsidiary’s reasonable business judgment, are doubtful of collection,
(f) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business;
(g) the lapse, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Loan Party or Subsidiary, no longer material to the conduct of the business of the Loan Parties or any of their Subsidiaries;
(i) Dispositions for fair market value among the Loan Parties (other than to Holdings except in respect of equipment dispositions of Equity Interests) or real by any Subsidiary to a Loan Party (other than to Holdings except in respect of dispositions of Equity Interests), and (ii) Dispositions by any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(i) Dispositions of property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(dj) Dispositions of property Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Foreign Subsidiaries of the Borrowers may sell or dispose of Equity Interests to qualify directors where required by the Borrower applicable law or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (satisfy other than a Receivables Co.) or, solely requirements of applicable law with respect to the ownership of Equity Interests;
(m) Permitted Sale Leasebacks; and
(n) other Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerproperty; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least seventy-five percent (75% %) of the consideration for proceeds of such Disposition is cash;
in aggregate amount at any time in excess of $5,000,000 consist of cash or Cash Equivalents, (ii) the Net Cash Proceeds applicable Loan Party receives fair market value for such property (as determined by the Borrowers in good faith), (iii) all proceeds thereof are applied remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(d);
(iii2.06(b)(ii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
if required thereby, and (iv) to at the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each time of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) other than any such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionlegally binding commitment therefor entered into at a time when no Event of Default then existed), no Event of Default shall exist at the time of or would result from such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and the Administrative Agent shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (e.l.f. Beauty, Inc.), Credit Agreement (e.l.f. Beauty, Inc.)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into of its Subsidiaries to, Dispose of any agreement to make any Disposition, of its assets except:
(a) Dispositions issuances of Qualified Equity Interests by any Wholly-Owned Subsidiary of a Loan Party to a Loan Party, in each case subject to the Collateral and Guarantee Requirement and Section 2.7(b)(i)(B);
(b) the sale or lease of inventory in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06business;
(c) Dispositions for fair market value the use or transfer of equipment money, cash or real property to Cash Equivalents in a manner that is not prohibited by the extent that (i) such equipment terms of this Credit Agreement or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant other Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions the licensing and sublicensing on a non-exclusive basis of patents, trademarks, copyrights, and other intellectual property by rights in the Borrower or ordinary course of business, and the leasing and subleasing of any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrowerproperty;
(e) the granting of Liens permitted hereunder and the other transactions permitted by Section 7.2;
(f) any Casualty Event and the Disposition of assets any property subject thereto;
(g) the abandonment, cancellation or stock lapse of issued patents, registered trademarks and other registered intellectual property of a Loan Party or Subsidiary thereof to the extent, in such Loan Party’s reasonable business judgment, not economically desirable in the conduct of such Loan Party’s business or so long as such lapse is not materially adverse to the interests of the SubsidiariesLenders and (ii) the expiration of patents in accordance with their statutory terms;
(h) the sale of assets (other than Equity Interests of any Wholly-Owned Subsidiary, unless all of the Equity Interests of such Wholly-Owned Subsidiary (other than the Borrower) are sold in accordance with this clause (h)) for at least fair market value, so long as (with respect to each such DispositionA) such Disposition is for fair market value and:
no Default then exists or would immediately result therefrom, (iB) at least 75% of the consideration for received by the applicable Loan Party consists of cash or Cash Equivalents and is paid at the time of the closing of such Disposition is cash;
sale, (iiC) the Net Cash Proceeds therefrom are applied in accordance with Section 2.06(d);
and/or reinvested as (iii) no Default exists or would exist immediately prior to or after giving pro forma effect and to the Disposition;
extent) required by Section 2.7(b)(i)(A) and (ivD) to the extent not otherwise granted therein, aggregate amount of the Borrower agrees that it will, cash and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration proceeds received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of from all assets (or assets of the Person(s)) Disposed of in reliance on sold pursuant to this clause (ei) shall not exceed $100,000,000 after 2,500,000 in the Closing Dateaggregate during the term of this Credit Agreement (for this purpose, using the fair market value of property other than cash and Cash Equivalents);
(fi) such Disposition results from Dispositions of assets acquired by the Borrower and its Subsidiaries pursuant to a casualty or condemnation in respect Permitted Acquisition consummated within 12 months of the date of such property or assetsPermitted Acquisition in an aggregate amount not to exceed $500,000 for each such Permitted Acquisition;
(gj) such Disposition consists any trade in of the sale or discount of overdue accounts receivable equipment in exchange for other equipment in the ordinary course of business, but only in connection with the compromise or collection thereof; orand
(hk) the unwinding or terminating of hedging arrangements or transactions contemplated by any Swap Agreement which are not prohibited hereunder. To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 7.5 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 7.5, such Disposition is of Accounts and related assets and is made pursuant Collateral (unless sold to a Permitted Receivables TransactionLoan Party) shall be sold automatically free and clear of the Liens created by the Collateral Documents and, at the expense of the Loan Parties, the Administrative Agent shall take all reasonable actions any Loan Party reasonably requests in writing in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Harvard Bioscience Inc), Credit Agreement (Harvard Bioscience Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or surplus assets (including dormant manufacturing facilities) that are no longer used or usable in the business of the Company and its Restricted Subsidiaries;
(b) Dispositions of inventory in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Company or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orWholly Owned Subsidiary; provided, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrowerthat, the Borrower; provided that if the transferor of such property is the Borrower or a GuarantorBorrower, the transferee thereof must either be a Guarantor or, subject to the limitation above, the Company or another Borrower;
(e) any Disposition of assets Dispositions permitted by Sections 7.04 or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash7.06;
(iif) the Net Cash Proceeds are applied Dispositions of property or assets in accordance an aggregate amount in any fiscal year that, when combined with all other Dispositions previously made under this Section 2.06(d);
7.05(f) during such fiscal year (iii) no Default exists or would exist immediately prior to or and after giving pro forma effect to such proposed Disposition), do not exceed twelve and one-half percent (12.5%) of the Disposition;
(iv) to Total Consolidated Assets of the extent not otherwise granted therein, the Borrower agrees that it will, Company and will cause each of its Restricted Subsidiaries that as of the end of the immediately preceding fiscal year for which financial statements are Domestic Subsidiaries to, grant required to be delivered to the Administrative Agent a security interest and the Lenders pursuant to Section 6.01, or for the 2019 fiscal year, the Audited Financial Statements (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Dispositions in any nonfiscal year shall at a later time exceed twelve and one-cash consideration received in connection with a half percent (12.5%) of the Total Consolidated Assets of the Company and its Restricted Subsidiaries so long as at the time of each such Disposition provided for in (and immediately after giving pro forma effect thereto) each such Disposition was permitted to be made under this Section 8.05(e7.05(f)); provided, that, to the extent the proceeds of any Disposition made under this Section 7.05(f) that are reinvested within the same fiscal year in which such Disposition is evidenced made in assets used or usable in a business permitted by Section 7.07 as certified in writing by a promissory note Responsible Officer to the Administrative Agent (which such writing shall indicate the date and amount of such reinvestment and the assets or other written instrument; and
(v) 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 book value amount of Dispositions permitted under this Section 7.05(f); provided, further, that, the assets (or assets amount of the Person) subject to such Disposition, when taken together any Disposition for purposes of compliance with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (eSection 7.05(f) shall not exceed $100,000,000 after be the Closing Date;
(f) such Disposition results from a casualty or condemnation fair market value as determined by the Company in respect of such property or assetsgood faith;
(g) such Disposition consists the Company or any Restricted Subsidiary may write-off, discount, sell or otherwise Dispose of the sale defaulted or discount of overdue accounts receivable past due receivables and similar obligations in the ordinary course of business, but only in connection with the compromise or collection thereof; orbusiness and not as part of an accounts receivable financing transaction;
(h) such Disposition is to the extent constituting a Disposition, (i) issuances of Accounts Equity Interests in the ordinary course of business and related assets and is made (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 the aggregate, in any material respect with the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole;
(l) leases, subleases, licenses or sublicenses of real or personal property granted by the Company or any of its Restricted Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of the Company and its Restricted Subsidiaries, taken as a whole;
(m) transfers or other Dispositions of property subject to condemnation, takings or casualty events;
(n) Dispositions of Unrestricted Subsidiaries, including 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 TransactionFinancing in accordance with the terms thereof;
(q) Dispositions of assets pursuant to Tax Incentive Programs; and
(r) Dispositions of assets previously disclosed in reasonable detail to the Administrative Agent and the Lenders in writing at least three (3) Business Days prior to the Restatement Effective Date; provided, that, any Disposition made between a Loan Party and a Subsidiary of the Company that is not a Loan Party shall be for fair market value (determined in good faith by the Company at the time of such Disposition).
Appears in 2 contracts
Samples: Credit Agreement (Mohawk Industries Inc), Credit Agreement (Mohawk Industries Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, damaged, destroyed or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02Dispositions of inventory in the ordinary course of business or equipment on or held for lease in the ordinary course of business, (ii) a Lien permitted under Section 8.01 including sales, leases or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06exchanges of such assets;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by to (i) the Borrower Parent or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Domestic Subsidiary of the BorrowerParent and (ii) to any Foreign Subsidiary of the Parent in an aggregate amount, when combined with the Borrower; provided that if the transferor aggregate amount of Investments made pursuant to Section 7.02(c)(ii) during such property is the Borrower or a Guarantorfiscal year, the transferee thereof must be a Guarantor or, subject not to the limitation above, the Borrowerexceed $10,000,000 in any fiscal year;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.04;
(f) such Disposition results from a casualty Dispositions of lease assets in lease securitization, structured finance or condemnation syndication transactions, provided that the Borrower remains in respect compliance with its limitations under the Borrowing Base and all other terms and conditions of such property or assetsthis Agreement;
(g) such Disposition consists 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 sale or discount Borrower in its reasonable discretion) of overdue accounts receivable less than $10,000,000 in the aggregate during the term of this Agreement;
(i) Dispositions of cash equivalents in the ordinary course of business;
(j) leases or subleases of property, but only including real property, in each case in the ordinary course of business not materially interfering with the conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(k) licenses for the use of intellectual property of the Borrower or a Subsidiary in the ordinary course of the Borrower’s or such Subsidiary’s business;
(l) Dispositions of accounts receivable in connection with the compromise compromise, settlement or collection thereof; orthereof in the ordinary course of business;
(hm) such Disposition is any surrender or waiver of Accounts 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, (i) Restricted Payments and related assets (ii) Liens, Investments and is fundamental changes permitted by Sections 7.01, 7.02 and 7.04, respectively;
(o) casualty events or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceedings of, any property of the Borrower or any of its Subsidiaries;
(p) Dispositions of 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
(q) the assignment, cancellation, abandonment or other Disposition of (i) intellectual property or (ii) real property leases or licenses, that is, in the good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Borrower and the Subsidiaries, taken as a Permitted Receivables Transactionwhole; provided, however, that (i) any Disposition pursuant to clauses (c), (f) or (g) shall be for fair market value and (ii) if a Disposition involves Pledged Railcars (other than a lease thereof), the Borrower shall, if required by Section 6.02(a), deliver an updated Borrowing Base Certificate and shall comply with Section 2.06.
Appears in 2 contracts
Samples: Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, in each case, having a fair market value in excess of the greater of (i) $35,000,000 and (i) 3.50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries based on the Most Recent Financial Statements in a single transaction or in a related series of transactions, except:
(a) Dispositions of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired in the ordinary course of its business and Dispositions of property (including, without limitation, real estate and neither constitutes a Disposition of all related improvements) no longer used or a substantial part useful in the conduct of the Borrower’s business of the Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) Subsidiaries (including allowing any registrations or any applications for registration of obsolete any immaterial intellectual property to lapse or worn out propertygo abandoned);
(b) any Disposition that constitutes (ix) an Investment permitted under Section 8.02, Dispositions of inventory or equipment in the ordinary course of business and (iiy) a Lien permitted under Section 8.01 the leasing or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06subleasing of real property in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement other property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower to any Restricted Subsidiary, or by any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect the Borrower or to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions of assets accounts receivable for purposes of collection or stock forgiveness or discounting of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business;
(f) Dispositions of investment securities, cash and Cash Equivalents in the ordinary course of business;
(g) (A) Dispositions permitted by Section 7.04 (other than Section 7.04(a)(ii), Section 7.04(b) or Section 7.04(d)(ii)); (B) Dispositions that constitute Investments permitted by Section 7.02 (other than Section 7.02(g)); and (C) Dispositions that constitute Restricted Payments permitted by Section 7.06;
(h) (i) Dispositions, licensing, sublicensing and cross-licensing arrangements, in each case, involving any technology or IP Rights of the Borrower or any Restricted Subsidiary in each case, either entered into in the ordinary course of business or pursuant to a bona fide transaction intended to increase the revenue of the Borrower and its Restricted Subsidiaries and which could not reasonably be expected to have a Material Adverse Effect, (ii) the Disposition, abandonment, cancellation or lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable good faith determination of the Borrower or its Restricted Subsidiaries are no longer economically practicable to maintain, worth the cost of maintaining, or used or useful in any material respect, (iii) Dispositions of IP Rights through expiration in accordance with their respective statutory terms, or (iv) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology or IP Rights of (A) the Borrower or any Restricted Subsidiary that is a Loan Party to the Borrower or any Restricted Subsidiary that is a Loan Party, or (B) any Restricted Subsidiary that is not a Loan Party to the Borrower or any Restricted Subsidiary that is not a Loan Party;
(i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property that has been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(j) Dispositions by the Borrower and its Restricted Subsidiaries of property not otherwise permitted under this Section 7.05 (but only in any event excluding Receivables Program Assets); provided that with respect to any Disposition with a purchase price in an aggregate amount (with respect to any single Disposition or series of related Dispositions) in excess of the greater of (i) $70,000,000 and (ii) 7.00% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries based on the Most Recent Financial Statements, (i) at the time of such Disposition and after giving effect thereto, no Event of Default shall exist or would result from such Disposition as of the date of the agreement governing such Disposition, (ii) the consideration received for such property shall be in an amount at least equal to the fair market value thereof and (iii) no less than 75% of such consideration shall be paid in cash; provided, however, that for the purposes of clause (iii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s or the applicable 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 Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days (or such longer period as the Administrative Agent may agree) following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received any in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received during the term of this Agreement pursuant to this clause (C), not in excess of the greater of (i) $100,000,000 and (ii) 10.00% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries based on the Most Recent Financial Statements;
(k) Dispositions by the Borrower and its Restricted Subsidiaries of property acquired after the Closing Date in Permitted Acquisitions; provided that (i) the Borrower identifies any such assets to be divested in reasonable detail in writing to the Administrative Agent within 180 days (or such longer period as the Administrative Agent may agree) following the closing of such Permitted Acquisition and (ii) the fair market value of the assets to be divested in connection with any Permitted Acquisition does not exceed an amount equal to 35.00% of the total cash and non-cash consideration for such Permitted Acquisition;
(l) Dispositions of Receivables Program Assets in connection with a Qualified Receivables Transaction; provided that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (ii) the outstanding principal amount of Indebtedness in respect of Receivables Program Obligations shall not exceed the maximum amount permitted to be outstanding under Section 7.03(j), and (iii) no Event of Default shall have occurred and be continuing at the time such Disposition is made;
(m) leases, licenses, subleases or sublicenses granted to others in the ordinary course of business or the termination thereof which (i) do not interfere in any material respect with the business of the Borrower or any Restricted Subsidiary or (ii) relate to closed branches or manufacturing facilities or the discontinuation of any product or service line;
(n) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(o) Dispositions of Investments in joint ventures or any Subsidiary that is not a wholly-owned Subsidiary to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture or similar parties set forth in joint venture arrangements and similar binding arrangements;
(p) (i) termination of leases in the ordinary course of business, (ii) the 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 other litigation claims (including in tort) in the ordinary course of business;
(q) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the United States. or (ii) any Foreign Subsidiary in the United States or any other jurisdiction;
(r) Dispositions of assets in connection with the compromise closing or collection thereofsale of an office in the ordinary course of business of the Borrower and its Restricted 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; or
provided that as to each and all such sales and closings, (hi) on the date on which the agreement governing such Disposition is executed, no Event of Accounts Default shall result and related (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(s) the Disposition of aircrafts, motor vehicles, trailers, cabs, and information technology equipment;
(t) sale and leaseback transactions permitted pursuant to Section 7.15;
(u) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets and so long as the exchange or swap is made pursuant for fair value (as reasonably determined by the Borrower) for like property or assets; provided that within 90 days of any such exchange or swap, in the case of any Loan Party and to the extent such property does not constitute an "Excluded Asset", the Administrative Agent has a Permitted Receivables Transactionperfected Lien having the same priority as any Lien held on the assets so exchanged or swapped; and
(v) terminations of Swap Contracts.
Appears in 2 contracts
Samples: Credit Agreement (Post Holdings, Inc.), Credit Agreement (Post Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes Dispositions of inventory (iincluding Hydrocarbons and seismic data) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orGuarantor, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is or by the Borrower or a to any Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) Dispositions of claims against customers, working interest owners, other industry partners or any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received other Person in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note workouts or bankruptcy, insolvency or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together similar proceedings with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Daterespect thereto;
(f) such Disposition results from a casualty or condemnation of defaulted receivables in respect the ordinary course of such property or assetsbusiness for collection;
(g) such Disposition consists of funds collected for the beneficial interest of, or of the sale interests owned by, third party royalty or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; orworking interest owners;
(h) Dispositions of interests in oil and gas leases, or portions thereof (if released or abandoned but not otherwise sold or transferred) so long as no well situated on any such lease, or located on any unit containing all or any part thereof, is capable (or is subject to being made capable through commercially feasible operations) of producing oil, gas, or other Hydrocarbons in commercial quantities;
(i) any Disposition of Borrowing Base Properties or any Swap Termination; provided, that prior to or contemporaneously therewith: (i) the Borrowing Base shall have been reduced or redetermined to the extent provided in Section 2.15(d), unless such reduction is of Accounts and related assets and is made not required pursuant to a Permitted Receivables Transactionthe first proviso in such Section 2.15(d) and (ii) the Loan Parties shall have made all mandatory prepayments required by Section 2.04 in connection with such Asset Disposition or Swap Termination (including after giving effect to any such reduction in the Borrowing Base pursuant to Section 2.15(d));
(j) Dispositions permitted by Section 7.02 and Section 7.04;
(k) Dispositions of property (other than Borrowing Base Properties or Swap Contracts) not otherwise permitted in the preceding clauses of this Section 7.05; and
(l) Dispositions permitted by Section 7.01 and Section 7.06; provided, however, that (i) any Disposition pursuant to clauses (a) through (d), (g) through (i), (k) and (l) shall be for fair market value as determined by the Board of the Borrower acting reasonably in good faith, (ii) no Disposition shall be permitted under clauses (i) or (k) if any Default shall have occurred and be continuing at the time thereof or would result therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Tapstone Energy Inc.), Credit Agreement (Tapstone Energy Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course consisting of its business (sales of marketable securities, loans, loan servicing rights, commodities, forwards, futures, derivatives and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made other assets in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02trading, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b)market making activities, or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real propertyloan origination and securitization, structured products and other financial services activities, and real estate businesses, in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business;
(b) Dispositions by (i) any Subsidiary of the Borrower to the Borrower or any other Subsidiary and (ii) the Borrower to any, but only direct or indirect, wholly owned Subsidiary of the Borrower;
(c) Any Disposition (in addition to the Dispositions permitted by clauses (a) and (b) above) so long as upon the Disposition Date for such Disposition (as defined below) the aggregate amount of Consolidated EBITDA contributed by the assets, businesses or divisions sold or otherwise disposed of by the Loan Parties and their Subsidiaries in connection with the compromise or collection thereof; or
(hi) such Disposition is and (ii) all other Dispositions that occurred within one year prior to such Disposition Date shall not exceed 25% of Accounts and related assets and is made Consolidated EBITDA for the most recent period of four fiscal quarters for which the Borrower has delivered financial statements pursuant to a Permitted Receivables TransactionSection 6.01(a) or 6.01(b). For purposes of this clause (d), “Disposition Date” means, with respect to any Disposition, the earliest of (A) the date the definitive agreement is entered into to make such Disposition, (B) the public announcement by the Borrower or its Subsidiaries of such Disposition, or (C) the closing of such Disposition.
Appears in 2 contracts
Samples: Credit Agreement (BGC Group, Inc.), Credit Agreement (BGC Partners, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that the board of directors of the Company has reasonably determined in good faith that the terms of the transaction are fair and reasonable to the Company or such Subsidiary, as the case may be; and within one year after the receipt of any Net Cash Proceeds with respect to such Disposition the Company or such Subsidiary shall have used any Net Cash Proceeds to (i) such equipment replace the properties or real property is exchanged for credit against assets that were the purchase price subject of similar replacement property or the Disposition, (ii) acquire properties or assets in the proceeds businesses of such Disposition are reasonably promptly applied the Company and its Subsidiaries or (iii) repay all or part of the Obligations or Indebtedness outstanding under the notes issued pursuant to the purchase price of such replacement equipment Note Purchase Agreement, the Indebtedness outstanding under the Term Credit Agreement, or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyIndebtedness outstanding under this Agreement;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Company or to a wholly-owned Restricted Wholly Owned Subsidiary (other than a Receivables Co.) or, solely with respect or by the Company to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerany Guarantor; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Company or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions permitted by Section 7.04;
(f) Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.05 (including sales of assets or stock government receivables in conjunction with the financing of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
energy service performance contracts); provided that (i) at least 75% the time of the consideration for such Disposition is cash;
Disposition, no Default shall exist or would result from such Disposition, (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (ef) during the term of this Agreement, commencing on the Amendment Effective Date, shall not exceed $100,000,000 after 20% of Consolidated Total Capitalization as of the Closing Date;
consummation of such Disposition; and (iii) any Disposition pursuant to clause (f) such Disposition results from a casualty or condemnation in respect of such property or assetsshall be for fair market value;
(g) such Disposition consists of the sale leases, subleases, licenses or discount of overdue accounts receivable sublicenses granted in the ordinary course of businessbusiness to others, but only in connection with the compromise or collection thereof; orwhich could not reasonably be expected to have a Material Adverse Effect;
(h) such Disposition the grant of any Lien that is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionLien;
(i) Dispositions of assets within 365 days after the acquisition thereof if (i) such assets are outside the principal business areas to which the assets acquired, taken as a whole, relate, and (ii) such assets are sold or disposed of for cash or any other consideration which represents the fair market value thereof; and
(j) Dispositions, the net cash proceeds of which are reinvested in assets used or useful in the business of the Company or its Subsidiaries within 365 days of such Disposition.
Appears in 2 contracts
Samples: Credit Agreement (Aecom Technology Corp), Credit Agreement (Aecom Technology Corp)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out, used or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Parent and the Restricted its Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory and goods held for sale in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx ; provided that to the Administrative Agent (including extent the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on property being transferred constitutes Collateral, such new or replacement propertyproperty shall constitute Collateral;
(d) Dispositions of property by the to a Borrower or any Restricted a Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerLoan Party;
(e) any Disposition of assets or stock of the SubsidiariesDispositions permitted by Sections 7.02, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash7.04 and 7.06 and Liens permitted by Section 7.01;
(iif) Dispositions of property pursuant to sale-leaseback transactions; provided that the Net Cash Proceeds thereof are applied in accordance with Section 2.06(d2.03(b)(iii);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists Dispositions of the sale or discount of overdue accounts receivable Cash Equivalents in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(h) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the 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 Disposition is Casualty Event;
(j) Dispositions of Accounts and related assets and is property not otherwise permitted under this Section 7.05 in an aggregate amount not to exceed $750,000 in the aggregate in any fiscal year;
(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) the unwinding of any Swap Contract in the ordinary course of business; and
(m) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any Intellectual Property that, in the reasonable judgment of the Parent and its Subsidiaries, are not necessary or material in the conduct of the business of the Parent and its Subsidiaries; provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(a), (e), (i), (k) and (m) and except for Dispositions from a Permitted Receivables TransactionBorrower Loan Party to a Loan Party), shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrowers in good faith.
Appears in 2 contracts
Samples: Credit Agreement (ARC Group Worldwide, Inc.), Credit Agreement (ARC Group Worldwide, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes Dispositions of assets in the ordinary course of business, including, without limitation, sales (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 directly or Section 8.04(a) or (bindirectly), or (iii) a Restricted Payment permitted under Section 8.06dedications and other donations to Governmental Authorities, leases and sales and leasebacks of Units and Land;
(c) Dispositions for fair market value of equipment or real property assets in which the Net Available Proceeds therefrom are used within one year to the extent that (i) such equipment or real property is exchanged for credit against repay any Indebtedness under the purchase price of similar replacement property or Loan Documents, (ii) repay any Indebtedness which was secured by the proceeds assets sold in such Disposition, and/or (iii) invest all or any part of the Net Available Proceeds thereof in the purchase of assets (other than securities, unless such securities represent Equity Interests in an entity engaged solely in the business described in Section 5.19, such entity becomes a Restricted Subsidiary and the Borrower or a Restricted Subsidiary acquires voting and management control of such entity) to be used by the Borrower or any Restricted Subsidiary in the business described in Section 5.19, provided however, if after one year from such Disposition are reasonably promptly applied and on the date of the proposed payment referred to immediately hereafter, there is no Indebtedness outstanding under this Agreement, the purchase price Borrower may repay any amounts required under Section 4.09 of such replacement equipment the Senior Note Indenture or real property, and similar provisions contained in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new Refinancing Indebtedness relating thereto or replacement propertyin any Public Indebtedness;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets or stock of the SubsidiariesDispositions permitted by Sections 7.02, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, 7.04 and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.06;
(f) such Disposition results from a casualty or condemnation in respect transfers of such property or assetsCash and Cash Equivalents;
(g) such Disposition consists the creation or realization of the sale or discount any Lien permitted by Section 7.01; and
(h) dispositions of overdue accounts receivable mortgage liens and related assets and mortgage backed securities in the ordinary course of business; provided, but only in connection with the compromise or collection thereof; or
however, that any Disposition pursuant to clauses (a), (b), (c), (f) and (h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionshall be for fair market value.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bgo abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerRestricted Subsidiary;
(e) any Disposition of assets or stock of the SubsidiariesDispositions permitted by Sections 7.02, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with 7.04 and 7.06 and Liens permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.01;
(f) such Disposition results from a casualty or condemnation in respect of such property or assetsPermitted Sale Leasebacks;
(g) such Disposition consists Dispositions in the ordinary course of business of Cash Equivalents;
(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 sale Borrower and its 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 the Borrower or discount its applicable Restricted Subsidiaries, as the case may be, makes any required prepayment of overdue First Lien Loans and or Second Lien Loans in accordance with the terms of the First Lien Loan Documents and the Second Lien Loan Documents;
(k) Dispositions listed on Schedule 7.05(k) (“Scheduled Dispositions”);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or;
(hn) such Disposition is any issuance or sale of Accounts and related assets and is made Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(o) the unwinding of any Swap Contract pursuant to its terms;
(p) any Disposition of Securitization Assets to a Permitted Receivables TransactionSecuritization Subsidiary; and
(q) the transfer of the Calgary Property by the Borrower to the Calgary SPV.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any legally binding agreement (other than an agreement expressly contingent upon the prior consent of the Majority Lenders pursuant hereto) to make any Disposition, other than Dispositions of cash or cash equivalents, except:
(ai) Dispositions of obsolete or worn-out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien Dispositions of inventory and Investments in the ordinary course of business and Dispositions constituting Restricted Payments permitted under pursuant to Section 8.01 or Section 8.04(a) or (b12(f), or ;
(iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (iA) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(div) Dispositions of property property: (A) by any Subsidiary to the Borrower Guarantor or any Restricted Subsidiary CTL or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower Borrower, the Guarantor or a GuarantorCTL, the transferee thereof must be a Guarantor or, subject to the limitation aboveBorrower, the BorrowerGuarantor or CTL; or (B) by the Guarantor or CTL to any wholly-owned Subsidiary;
(ev) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted by Section 12(d) (with respect without regard to each such Dispositionclause (iv) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(dthereof);
(iiivi) no Default exists licenses and sales of IP Rights, Dispositions of real property leases, and Dispositions consisting of leases of real property owned by the Guarantor or would exist immediately prior to or after giving pro forma effect to its Subsidiaries, in each case, undertaken in the Dispositionordinary course of business;
(ivvii) Dispositions of Receivables and Receivables-Related Assets pursuant to a Permitted Receivables Purchase Facility;
(viii) the extent not otherwise granted thereinsale of Buildings 1-4 at the Guarantor’s River Oaks Campus, the Borrower agrees that it willin San Jose, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrumentCalifornia; and
(vix) Dispositions not otherwise permitted under this Section 12(e); provided that (A) at the time of such Disposition, no Default shall exist or would result from such Disposition and (B) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eviii) shall not at any time exceed $100,000,000 after the Closing Date;
(f) for any fiscal year an amount equal to 5% of Consolidated Net Tangible Assets, as such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists assets are determined as of the sale end of the most recent fiscal quarter of the Guarantor for which financial statements have from time to time been delivered to the Lenders hereunder; provided, however, that any Disposition pursuant to clauses (i) through (ix) (other than Dispositions between the Guarantor and any of its wholly-owned Subsidiaries, or discount between any of overdue accounts receivable its wholly-owned Subsidiaries and other than Restricted Payments permitted pursuant to Section 12(f)) shall be for fair market value as determined in good faith by the ordinary course of business, but only Guarantor or the Guarantor shall have determined in connection with the compromise or collection thereof; or
(h) good faith that such Disposition is in the best interests of Accounts the Guarantor and related assets its Subsidiaries and is made pursuant not materially disadvantageous to a Permitted Receivables Transactionthe Lenders.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes Dispositions of assets in the ordinary course of business, including, without limitation, sales (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 directly or Section 8.04(a) or (bindirectly), or (iii) a Restricted Payment permitted under Section 8.06dedications and other donations to Governmental Authorities, leases and sales and leasebacks of Units and Land;
(c) Dispositions for fair market value of equipment or real property assets in which the Net Available Proceeds therefrom are used within one year to the extent that (i) such equipment or real property is exchanged for credit against repay any Indebtedness under the purchase price of similar replacement property or Loan Documents, (ii) repay any Indebtedness which was secured by the proceeds assets sold in such Disposition, and/or (iii) invest all or any part of the Net Available Proceeds thereof in the purchase of assets (other than securities, unless such securities represent Equity Interests in an entity engaged solely in the business described in SECTION 5.19, such entity becomes a Restricted Subsidiary and the Borrower or a Restricted Subsidiary acquires voting and management control of such entity) to be used by the Borrower or any Restricted Subsidiary in the business described in SECTION 5.19, PROVIDED HOWEVER, if after one year from such Disposition are reasonably promptly applied and on the date of the proposed payment referred to immediately hereafter, there is no Indebtedness outstanding under this Agreement, the purchase price Borrower may repay any amounts required under Section 4.09 of such replacement equipment the Senior Note Indenture or real property, and similar provisions contained in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new Refinancing Indebtedness relating thereto or replacement propertyin any Public Indebtedness;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided PROVIDED that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets or stock of the SubsidiariesDispositions permitted by SECTIONS 7.02, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, 7.04 and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.06;
(f) such Disposition results from a casualty or condemnation in respect transfers of such property or assetsCash and Cash Equivalents;
(g) such Disposition consists the creation or realization of the sale or discount any Lien permitted by SECTION 7.01; and
(h) dispositions of overdue accounts receivable mortgage liens and related assets and mortgage backed securities in the ordinary course of business; PROVIDED, but only in connection with the compromise or collection thereof; or
HOWEVER, that any Disposition pursuant to clauses (a), (b), (c), (f) and (h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionshall be for fair market value.
Appears in 1 contract
Samples: Credit Agreement (Meritage Corp)
Dispositions. 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 its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Company or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that (i) if the transferor of such property is the Borrower or a GuarantorLoan Party, the transferee thereof must be a Guarantor or, subject to Loan Party and (ii) if the limitation abovetransferor of such property is a Loan Party other than a Foreign Obligor or the Canadian Borrower, the transferee thereof must be a Loan Party other than a Foreign Obligor or the Canadian Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, 7.04 and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing DatePermitted Liens;
(f) such Disposition results from a casualty Dispositions by the Company and its Restricted Subsidiaries required to comply with relevant antitrust Laws in connection with the Acquisition or condemnation in respect of such property or assetsany Permitted Acquisition;
(g) such Disposition consists of the sale leases, subleases, licenses or discount of overdue accounts receivable sublicenses granted in the ordinary course of business, but only which could not reasonably be expected to have a Material Adverse Effect;
(h) the sale or other transfer of accounts receivable in connection with the compromise securitization thereof and/or factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Company or collection thereof; orany Restricted Subsidiary, within the limits set forth in Section 7.02(f);
(hi) such Disposition is of Accounts so long as no Default shall have occurred and related assets and is made pursuant be continuing, or would result therefrom, other Dispositions in an aggregate amount not to a Permitted Receivables Transaction.exceed $200,000,000 in any fiscal year; provided that any unused amount may be carried over for use in the next following fiscal year;
Appears in 1 contract
Samples: Credit Agreement (Aecom)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions permitted by Section 7.04 (other than Section 7.04(a)(v)), (ii) Investments permitted by Section 7.03, and (iii) Restricted Payments permitted by Section 7.06;
(f) leases, subleases, licenses and rights to use granted to others in the ordinary course of assets or stock of the Subsidiaries, business and not otherwise prohibited by this Agreement so long as such leases, subleases, licenses and rights to use do not materially adversely affect the conduct by the Borrower and its Restricted Subsidiaries of their core golf products business or the value of the Collateral;
(with respect to each such Dispositiong) such Disposition is for fair market value and:[reserved];
(i) Dispositions of excess Real Estate and related assets made in connection with the consolidation of business activities in other locations and (ii) sale and leaseback transactions involving Real Estate;
(i) [reserved];
(j) other Dispositions in an aggregate amount in any fiscal year not to exceed 5% of the Consolidated Tangible Assets of the Borrower and its Restricted Subsidiaries as of the end of the most recently ended fiscal year of the Borrower; and
(k) other Dispositions; provided that at least 75% of the consideration for such Disposition is cash;
shall be paid to the Borrower or such Restricted Subsidiary in cash or Cash Equivalents; provided that (ii1) 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 (1) from and after the Net Closing Date, not in excess of $50,000,000, with the Fair Market Value of each item of Designated Non-Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after Consideration being measured at the time received and without giving pro forma effect to subsequent changes in value, shall be deemed cash and (2) any liabilities or obligations that are assumed by the Disposition;
(iv) to the extent not otherwise granted thereintransferee in connection with such Disposition shall be deemed cash and any securities, notes or other obligations received by the Borrower agrees that it will, and will cause each or any of its Restricted Subsidiaries from the transferee or Affiliates in connection with such Disposition shall be deemed cash if the Borrower or the applicable Restricted Subsidiary intends at the time of receipt to convert such securities, notes or other obligations to cash within fifteen months of receipt thereof (with the proceeds thereof being cash proceeds upon any such conversion); provided, further, that are Domestic any such Disposition shall be for Fair Market Value. provided, however, that any Disposition pursuant to Section 7.05(a) through Section 7.05(j) shall be for fair market value; provided, further, that the Borrower or any of its Restricted Subsidiaries to, grant may enter into an agreement to make an Disposition otherwise prohibited by this Section 7.05 if failure to consummate such Disposition would not result in a liability or Indebtedness otherwise prohibited by this Agreement and the consummation of the Disposition contemplated by such agreement is conditioned upon either the termination of this Agreement or receipt of the prior written consent of the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) and the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionRequired Lenders.
Appears in 1 contract
Samples: Credit Agreement (Callaway Golf Co)
Dispositions. Make The Credit Parties shall not, and shall not permit any Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, non-functioning or worn out Property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory and other Property in the ordinary course of business for fair consideration;
(c) Dispositions for fair market value of equipment or real property permitted under Section 6.3 and Dispositions to the extent that (i) such equipment or real property a wholly-owned Domestic Subsidiary which 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertya Guarantor;
(d) Dispositions of property by Capital Stock of the Borrower and Dispositions of Capital Stock of a Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borroweranother Subsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;and
(e) Dispositions of Assets (including (i) Capital Stock of a Subsidiary other than to the Borrower or another Subsidiary and (ii) arrangements whereby a Credit Party or a Subsidiary sells or transfers any Disposition of assets its Assets, and thereafter rents or stock leases those Assets (except for the sale and leaseback of the Subsidiariesoperating facilities)) not otherwise permitted in this Section 6.5 above, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% the time of the consideration for such Disposition is cash;
and after giving effect thereto, no Default or Event of Default shall exist and (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent aggregate amount of such Dispositions not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for permitted in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) 6.5 above during any fiscal year shall not exceed the greater of $100,000,000 after 40,000,000 or 6% of Consolidated Total Assets as of the Closing Datelast day of the immediately preceding fiscal year without the prior consent of the Required Lenders;
(f) such Disposition results from a casualty or condemnation the liquidation of cash and equivalents, which liquidation shall be in respect the ordinary course of such property or assetsbusiness;
(g) such Disposition consists an assignment of an account to an insurance company providing credit insurance to a Credit Party for purposes of collecting insurance proceeds of an amount reasonably commensurate with the amount of the sale account so assigned,
(h) termination of a lease of real or discount personal Property that is not necessary for the ordinary course of overdue accounts receivable business, could not reasonably be expected to have a Material Adverse Effect and does not result from an obligor’s default;
(i) Disposition of Property subject to casualty, expropriation or condemnation proceedings;
(j) so long as no Event of Default has then occurred and is continuing or would result therefrom, the transfer, assignment, cancellation, abandonment or other disposition of intellectual property rights in the ordinary course of business, but only which in the reasonable good faith determination of the Borrower is not material to the conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(k) voluntary terminations of any Hedging Agreement;
(l) so long as no Event of Default has then occurred and is continuing or would result therefrom, non-exclusive licenses of patents, copyrights, trademarks, trade secrets or other intellectual property to third parties in the ordinary course of business;
(m) so long as no Event of Default has then occurred or is continuing or would result therefrom, leases, subleases and terminations and abandonment of any leasehold interest in real Property and granting of easements or rights of way in respect of real Property, in each case in the ordinary course of business;
(n) the expiration of registered intellectual property in accordance with its statutory term;
(o) the expiration of any contract, contract right or other agreement in accordance with its term;
(p) Dispositions to Cash America and its Subsidiaries contemplated by the Spin Transaction Documents;
(q) the sale of delinquent receivables in the ordinary course of business in connection with the collections or compromise or collection thereof; orand
(hr) such Disposition is sales of Accounts accounts receivable, or participations therein, securities of Securitization Subsidiaries and related assets and is made pursuant to in connection with a Permitted Receivables TransactionFinancing; provided, however, that any Disposition pursuant to clauses (a) through (f) shall be for fair consideration or reasonable value.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 Dispositions of inventory or Section 8.04(a) cash equivalents or (b), or (iii) a Restricted Payment permitted under Section 8.06immaterial assets in the ordinary course of business;
(c) Dispositions for fair market value of fixtures or equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property fixtures or equipment or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment fixtures or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyequipment;
(d) Liens permitted by Section 7.01, Investments permitted by Section 7.02 and Restricted Payments permitted by Section 7.07;
(e) Dispositions of property acquired by the Borrower or any Subsidiary after the Initial Closing Date pursuant to sale-leaseback transactions; provided that the applicable sale-leaseback transaction (i) occurs within ninety (90) 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 accounts receivables in connection with the collection or compromise thereof in the ordinary course of business;
(g) Leases, subleases, licenses or sublicenses (including the provision of software under an open source license), easements, rights of way or similar rights or encumbrances in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(h) transfers of property that has suffered a casualty (constituting a total loss or constructive total loss of such property) upon receipt of the Extraordinary Receipts of such casualty;
(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 (i) Targa Downstream LLC’s 38.75% interest in Gulf Coast Fractionators to any other Person and (ii) other property, subject to the Security Documents, by the Borrower or any Subsidiary to the Borrower or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Wholly Owned Subsidiary of the Borrower, 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 or, subject to the limitation above, the BorrowerGuarantor;
(ek) any Disposition Dispositions permitted under Section 7.05;
(l) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under clauses (a) through (k) or (m) of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
this Section 7.06; provided that (i) at least 75% the time of the consideration for such Disposition is cash;
Disposition, no Default shall exist or would result from such Disposition, (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (el) since the Closing Date shall not exceed $100,000,000 after ten percent (10%) of Consolidated Net Tangible Assets on the Closing Datefirst day of the fiscal year most recently ended at the time of such determination and (iii) no Disposition of less than all of the Equity Interests of any Restricted Subsidiary owned by the Borrower and its Restricted Subsidiaries shall be permitted under this clause (l);
(fm) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under clauses (a) through (l) of this Section 7.06; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the Disposition is for 75% cash or cash equivalents, (iii) the Borrower shall make the prepayment or reinvestment of proceeds of such Disposition results from a casualty or condemnation in respect as required by Section 2.05(d), and (iv) no Disposition of such property or assets;less than all of the Equity Interests of any Subsidiary owned by the Borrower and its Restricted Subsidiaries shall be permitted under this clause (m); and
(gn) such Disposition consists Dispositions of the sale or discount of overdue accounts receivable in the ordinary course of business, but only Receivables Facility Assets in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionFinancing; provided that this clause (n) shall be the exclusive clause of this Section 7.06 that permits Dispositions in connection with a Permitted Receivables Financing. provided, however, that any Disposition for consideration in excess of $100,000,000 (whether in one transaction or in a series of related transactions) pursuant to clauses (a), (b), (c), (e), (f), (i), (j), (k), (l) or (m) shall be for fair market value. So long as no Event of Default then exists, the Collateral Agent will, at the Borrower’s request and expense, execute a release, satisfactory to the Borrower and the Collateral Agent, of any Collateral so sold, transferred, leased, exchanged, alienated or disposed of pursuant to this Section.
Appears in 1 contract
Samples: Second Amendment and Restatement Agreement (Targa Resources Partners LP)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of used, obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a the abandonment or other Disposition of all or a substantial part intellectual property that is, in the reasonable judgment of the Borrower’s , no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted its Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 Dispositions of inventory or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Charge-Offs in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that that: (i) such equipment or real 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 equipment property; or real property, and in each case if (iii) the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery proceeds of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyDisposition are promptly deposited into a Concentration Account;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary thereof to the Borrower or to a wholly-wholly owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the BorrowerBorrower (including, for the Borroweravoidance of doubt, pursuant to the Asset Purchase Agreement); provided that that, if the transferor of such property is the Borrower or a Subsidiary of the Borrower that is a Subsidiary Guarantor, the transferee thereof must be the Borrower or a Guarantor or, subject to Subsidiary of the limitation above, the BorrowerBorrower that is a Subsidiary Guarantor;
(e) any Disposition of assets Dispositions permitted by Section 7.04(b)(i), Section 7.04(b)(ii), Section 7.04(b)(iii) or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d7.04(b)(iv);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable bad debt in the ordinary course of business;
(i) [intentionally omitted]; (ii) to the extent permitted hereunder, but only Restricted Payments; and (iii) to the extent permitted hereunder and otherwise constituting Dispositions, Investments;
(h) Dispositions of cash and Cash Equivalents;
(i) Dispositions of Receivables to a Third Party Financing SPV; and
(j) Dispositions of accounts receivable in connection with the compromise compromise, settlement or collection thereofthereof in the ordinary course of business; or
(h) such provided that any Disposition is of Accounts and related assets and is made pursuant to a any of the foregoing subsections of this Section 7.05 shall be for not less than fair market value unless otherwise agreed by the Administrative Agent in its Permitted Receivables TransactionDiscretion.
Appears in 1 contract
Samples: Credit Agreement (FlexShopper, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes Dispositions of (i) an Investment permitted under Section 8.02, inventory and (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b)other non-material assets, or (iii) a Restricted Payment permitted under Section 8.06in each case in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerSubsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.04;
(f) such Disposition results from a casualty or condemnation Dispositions by the Borrower and its Subsidiaries of property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed $30,000,000 in respect of such property or assetsany fiscal year;
(g) such Disposition consists non-exclusive licenses of the sale or discount of overdue accounts receivable IP Rights in the ordinary course of business, but only in connection business and substantially consistent with the compromise or collection thereof; orpast practice for terms not exceeding five years;
(h) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition is Disposition, no Default shall exist or would result from such Disposition, and (ii) the total amount of Accounts and related assets and is made property so Disposed, together with all other property so Disposed pursuant to this Section 7.05(h) during the preceding 12-month fiscal period, does not constitute a Substantial Portion of the property of the Borrower and its Subsidiaries;
(i) Dispositions pursuant to Permitted Receivables TransactionSecuritization Transactions; and
(j) Dispositions consisting of the sale of (i) accounts receivable from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss or (ii) Investments received from such account debtors in satisfaction or partial satisfaction of such accounts receivable to the extent reasonably necessary in order to prevent or limit loss; provided, however, that any Disposition pursuant to clauses (a) through (j) shall be for fair market value.
Appears in 1 contract
Dispositions. Make (a) No Loan Party shall, nor shall it permit any Disposition Restricted Subsidiary to, directly or enter into any agreement to indirectly, make any Disposition, exceptother than as set forth in subsection (c), unless:
(a1) Dispositions in Holdings or such Restricted Subsidiary receives consideration at least equal to the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value (such fair market value to be determined in good faith by Holdings on the date of equipment or real property contractually agreeing to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) of the assets subject to such Disposition is for fair market value and:
Disposition; and (i2) at least 75% of the consideration for received by Holdings or such Disposition Restricted Subsidiary is cash;in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”).
(iib) For the Net purposes of this Section 7.05, the following are deemed to be Cash Proceeds are applied in accordance with Section 2.06(d);Consideration:
(iii1) no Default exists any liabilities (as reflected on the Consolidated Group’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would exist immediately have been reflected on the Consolidated Group’s consolidated balance sheet or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings or such Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition); (2) any securities, notes or other obligations received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or cash equivalents within 180 days after giving pro forma effect to the such Disposition;
(iv) , to the extent not otherwise granted therein, of the Borrower agrees cash and cash equivalents received in that it will, conversion; and will cause each (3) any Designated Non-cash Consideration received by Holdings or any of its Restricted Subsidiaries that are Domestic Subsidiaries toin such Disposition having an aggregate fair market value, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with all other Designated Non-cash Consideration received pursuant to this clause that has at that time not been converted into cash or a cash equivalent, not to exceed the aggregate book greater of $100.0 million and 5.0% of Consolidated Net Tangible Assets (with the fair market value of all assets (or assets each item of Designated Non-cash Consideration being measured at the Person(stime received and without giving effect to subsequent changes in value)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;. 97 Xxxxx Xxxxxx Amended and Restated Credit and Guaranty Agreement NYDOCS03/1067767.15
(fc) such JHT may not make any Disposition results from a casualty of any Intellectual Property unless the Disposition: (1) is of obsolete assets no longer required or condemnation in respect of such property or assets;
useful for its business; (g2) such Disposition consists of the sale or discount of overdue accounts receivable is in the ordinary course of business, but only ; provided that such Dispositions in connection the aggregate do not exceed 10% of the fair market value of its Intellectual Property in any fiscal year; or (3) occurs with the compromise prior consent of the Required Lenders. For the avoidance of doubt, nothing in this clause 7.05(c) restricts or collection thereof; or
(h) such Disposition is prohibits any distribution by JHT of Accounts and related assets and is made pursuant cash or inter-company receivables to a Permitted Receivables Transactionshareholder of JHT through dividends or the making of subordinated loans.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (James Hardie Industries PLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, or property that is no longer used or useful in the business of the Parent Borrower and its Subsidiaries whether now owned or hereafter acquired, in each case, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02Dispositions of inventory, (ii) a Lien permitted under Section 8.01 equipment or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06cash and Cash Equivalents in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against all or a portion of 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the any Subsidiary to a Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be a Guarantor or, subject to the limitation above, the BorrowerBorrower or a Guarantor;
(e) Dispositions permitted by Section 7.04 and transactions permitted by Section 7.18;
(f) casualty, condemnation or any Disposition other event giving rise to a Recovery Event;
(g) the cross-licensing or licensing of assets intellectual property, in the ordinary course of business;
(h) the leasing, occupancy or stock sub-leasing of real property in the Subsidiaries, so long as (ordinary course of business that would not materially interfere with respect to each the required use of such Disposition) such Disposition is for fair market value and:real property by any Loan Party;
(i) at least 75the sale or discount, in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, in connection with the compromise or collection thereof;
(j) Dispositions of ABL Priority Collateral; provided that such Disposition is in connection with (i) a bulk sale of Inventory or (ii) another non-ordinary course disposition in connection with Store closing; provided, further that the aggregate amount of Dispositions pursuant to this Section 7.05(j) shall not exceed 10% of the consideration for Stores of the Parent Borrower and its Subsidiaries in any Fiscal Year (measured on the basis of the Stores of the Parent Borrower and its Subsidiaries at the beginning of such Fiscal Year) or 25% of the Stores of the Parent Borrower and its Subsidiaries during the term of the Revolving Credit Facility (measured on the basis of the Stores of the Parent Borrower and its Subsidiaries on the Closing Date);
(k) Dispositions by the Parent Borrower and its Subsidiaries not otherwise permitted under this Section 7.05 (other than Disposition of ABL Priority Collateral); provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book fair market value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (ej) shall not 101 exceed $100,000,000 after 75,000,000 during the Closing Dateterm of this Agreement and (iii) at least 75% of the purchase price for such asset shall be paid to Parent Borrower or such Subsidiary in cash;
(fl) such Disposition results from a casualty or condemnation in respect Dispositions consisting of such property or assets;Liens permitted by Section 7.02, Investments permitted by Section 7.03 and Restricted Payments permitted by Section 7.06; and
(gm) such Disposition consists the surrender, settlement or release of the sale or discount of overdue accounts receivable claims in the ordinary course of business; provided, but only in connection with the compromise or collection thereof; or
(h) such however, that any Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionSection 7.05(a) through Section 7.05(c), Section 7.05(j) or Section 7.05(k) shall be for fair market value.
Appears in 1 contract
Samples: Credit Agreement (Leslie's, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyequipment;
(d) Dispositions of property by the any Borrower or any Restricted Subsidiary to a wholly-owned any other Borrower or to any other Restricted Subsidiary (other than a Receivables Co.) orSubsidiary; provided that, solely with respect after giving effect to Dispositions of the stock of a Restricted Subsidiary of the Borrowersuch Disposition, the Borrower; provided that if the transferor of such property 70% Guaranty Threshold is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrowersatisfied;
(e) Dispositions of accounts receivable on a non-recourse, non-bulk sale basis in an aggregate amount which, together with Indebtedness incurred pursuant to Section 7.03(f)(ii), shall not exceed at any Disposition time the greater of assets (i) $100,000,000 or stock (ii) thirty percent (30%) of the Subsidiaries, so long as aggregate net book value of accounts receivable of WFS and its Restricted Subsidiaries on a consolidated basis at such time;
(f) Dispositions permitted by Section 7.04;
(g) Dispositions of credit card receivables to one or more payment service providers in connection with respect commercial agreements pursuant to each which WFS or a Restricted Subsidiary is entitled to receive all or substantially all of the proceeds of the receivables transferred pursuant to such DispositionDispositions; and
(h) such Disposition is for fair market value and:
Dispositions not otherwise permitted under this Section 7.05; provided that (i) at least 75% the time of the consideration for such Disposition, no Default shall exist or would result from such Disposition is cash;
and (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eh) in any fiscal year of WFS shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists 15% of the sale or discount aggregate book value of overdue accounts receivable in tangible assets of WFS and its Restricted Subsidiaries on a consolidated basis as of the ordinary course end of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionWFS’s most recently completed fiscal year.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) (i) so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions for fair market value of equipment or real property to the extent that (iA) such equipment or real 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 equipment or real property, property and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documentsii) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect x) there exists no Default before and/or after giving effect to each such Disposition) and every such Disposition and exchange on a Pro Forma Basis and (y) the Leverage Ratio is for fair market value and:
(i) at least 75% less than or equal to 3.50 to 1.00 on and prior to the date of the consideration for any component of any such Disposition is cash;
and exchange (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
such Disposition and exchange computed on a Pro Forma Basis), Dispositions of assets (ivincluding one or more Subsidiaries) to the extent not otherwise granted thereinexchanged for other like assets (including any Person that becomes a Subsidiary as a result of such exchange), the Borrower agrees that it willso long as, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries toafter giving effect thereto, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vA) the aggregate book value portion of the assets (or assets of the Person) subject EBITDA attributable to such DispositionDisposed assets, when taken together with the aggregate book value added to that portion of EBITDA attributable to all other assets (or assets of the Person(s)) Disposed of in reliance on this clause subsection (c)(ii), does not exceed 20% of EBITDA as set forth in the most recent financial information delivered to the Administrative Agent pursuant to Section 6.01(a) or (b), (B) any Investment in connection therewith is permitted by Section 7.02; (C) such exchange is for fair market value, (D) any consideration for any such exchange that does not constitute like assets is paid to the Borrower or such Subsidiary on the closing date of such Disposition in cash, and (E) the Borrower complies with Section 2.04(b) with respect to all such cash received;
(d) so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions of property by any Subsidiary to the Borrower or to a Wholly-Owned Subsidiary that is a Loan Party;
(e) shall not exceed so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions of assets with a book value of zero and a market value of less than $100,000,000 after the Closing Date10,000 to be Disposed with no consideration or for non-cash consideration;
(f) so long as (i) there exists no Default before and/or after giving effect to each and every such Disposition results from on a casualty or condemnation Pro Forma Basis and (ii) not less than 80% of the aggregate purchase price for any such Disposition is paid in respect cash on the date of such sale, Dispositions by the Borrower and its Subsidiaries of property or assetspursuant to sale-leaseback transactions permitted by Section 7.12;
(g) such Disposition consists non-exclusive licenses of the sale or discount of overdue accounts receivable IP Rights in the ordinary course of business, but only in connection business and substantially consistent with the compromise or collection thereof; orpast practice;
(h) Liens permitted under Section 7.01; and
(i) so long as (i) there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, (ii) not less than 80% of the aggregate purchase price for any such Disposition is paid in cash on the date of Accounts sale, (iii) no Material Adverse Effect exists or would result therefrom before and after giving effect to such Disposition, (iv) such Disposition shall be for fair market value and (v) the Net Cash Proceeds of any such Disposition are immediately used to prepay the Obligations as set forth in Section 2.04(b), other Dispositions not constituting all or substantially all of the assets of the Borrower. Upon any Disposition in accordance with this Section 7.05 and the payment of any related mandatory prepayment (if any) required in accordance with Section 2.04(b), (A) of any assets in accordance with the terms of this Section 7.05, the Administrative Agent will, if applicable, direct the Collateral Agent to terminate and release any and all Liens under the Collateral Documents on such assets being disposed (and direct the Collateral Agent to deliver to the applicable Loan Party any such Collateral being released that is made pursuant held by the Collateral Agent) and (B) of a Subsidiary that is a Guarantor in accordance with the terms of clause (h) preceding, the Administrative Agent will, if applicable, direct the Collateral Agent to a Permitted Receivables Transactionterminate and release such Guarantor Subsidiary from the Guaranty or Guaranty Joinder.
Appears in 1 contract
Samples: Credit Agreement (Media General Inc)
Dispositions. Make The Borrower will not, and will not permit any Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of property no longer used or useful in the business, or obsolete or worn out property in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee must be either the Borrower or a Subsidiary Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) Dispositions permitted by Section 6.03;
(f) leases, non-exclusive licenses, subleases or non-exclusive sublicenses granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any Disposition of assets or stock material respect with the business of the Borrower and its Subsidiaries;
(g) Restricted Payments permitted by Section 6.05 and Investments permitted by Section 6.06; and
(h) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section; provided that such Disposition must (a) be for the fair market value, so long as (b) with respect to each such Disposition) such Disposition is for fair market value and:
(i) any aggregate consideration received in respect thereof in excess of $1,000,000, at least 75% of the consideration for such Disposition is cash;
must consist of cash or Cash Equivalents (ii) with any securities, notes or other obligations or assets received by the Net Borrower or any Subsidiary from such transferee that are converted by such person into cash or Cash Proceeds are applied in accordance with Section 2.06(d);
Equivalents (iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted thereinof the cash or Cash Equivalents received) within one hundred eighty (180) days following the closing of the applicable disposition, the Borrower agrees that it will, treated as cash) and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vc) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on pursuant to this clause (ei) in any fiscal year shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transaction3,000,000.
Appears in 1 contract
Samples: Credit Agreement (TerrAscend Corp.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyequipment;
(dc) Dispositions of property by the Borrower or any Restricted Subsidiary to Borrower or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(d) Dispositions permitted by Sections 8.04 and 8.06;
(e) any Disposition Sales of assets or stock hydrocarbons, including pursuant to Advance Payment Contracts permitted by this Agreement, Forward Sales Contracts and Swap Contracts, in the ordinary course of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datebusiness;
(f) such Disposition results from Dispositions consisting of any compulsory pooling or unitization ordered by a casualty or condemnation Governmental Authority with jurisdiction over each Loan Party’s Mineral Interests in respect of such property or assetsits oil and gas properties;
(g) such Disposition consists Dispositions in connection with farm-outs participation or other similar agreements in the ordinary course of business of undeveloped acreage or undrilled depths and assignments in connection therewith;
(h) Asset Dispositions; provided that (1) all of the sale consideration received in respect to such Asset Disposition shall be cash or discount oil and gas properties to be included in the Borrowing Base pursuant to Section 4.08, (2) the consideration received shall be equal to or greater than the fair market value thereof (as reasonably determined by the board of directors or a Responsible Officer of Borrower and if requested by Agent, Borrower shall deliver a certificate of a Responsible Officer of Borrower certifying to that effect), and (3) to the extent that the Recognized Value of the aggregate of all Asset Dispositions in any calendar year exceeds 5% of the then effective Borrowing Base, then the Borrowing Base shall be reduced by the amount of such excess (by way of example, if the Borrowing Base is $50,000,000 on September 1 and Asset Dispositions having a Recognized Value of $1,000,000 occur on February 1, May 1 and September 1, then on September 1, the Borrowing Base would automatically reduce by $500,000 ($3,000,000 - $2,500,000 = $500,000));
(i) leases, subleases, licenses or sublicenses of property other than Mortgaged Properties in the ordinary course of business and which do not materially interfere with the value of such property;
(j) transfers of property subject to any condemnation or eminent domain (or deed in lieu thereof) upon receipt of the casualty proceeds of such event;
(k) Dispositions in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of Borrower, are not material to the conduct of the business of Borrower and its Subsidiaries;
(l) Dispositions of Investments in the Designated Investment Entities to the extent required by, or made pursuant to buy/sell arrangements between joint venture parties set forth in, joint venture arrangements and similar binding agreements;
(m) Dispositions of overdue accounts receivable arising in the ordinary course of business, but only in connection with the collection or compromise or collection thereof;
(n) Dispositions of cash equivalent Investments in the ordinary course of business;
(o) Dispositions of oil and gas properties not covered in the most recent Reserve Report furnished to Agent;
(p) voluntary terminations of Swap Contracts and Forward Sales Contracts, subject to the provisions of Section 4.03(b); or
(hq) such Dispositions of Equity Interests in Diamondback Energy, Inc. owned as of the Closing Date; provided, however, that (1) any Disposition is of Accounts and related assets and is made pursuant to clauses (e), (g), (h), (n) and (o) shall be for fair market value, and (2) no Disposition pursuant to clauses (d), (f), (g), (h), (l) and (o) may be made if a Permitted Receivables TransactionDefault shall exist or would result from such Disposition.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) (i) Dispositions for fair market value of equipment or real property to the extent that (iA) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or property, (iiB) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, and or (C) such Disposition is made in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx ordinary course of business for consideration at least equal to the Administrative Agent fair market value of such property and (including ii) Dispositions consisting of leases of real property to the delivery extent that such Disposition is made in the ordinary course of any necessary Mortgage and Mortgaged Property Support Documents) on business for consideration at least equal to the fair rental value of such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, 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 or, subject to the limitation above, the BorrowerGuarantor;
(e) Dispositions permitted by Section 7.04;
(f) non-exclusive licenses of IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years; and
(g) Dispositions of minority Equity Interests of any Person acquired pursuant to Section 7.02(i);
(h) any other Disposition of assets or stock of to the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value andextent that:
(i) at least 75if the property subject to such Disposition shall constitute more than 2% of the consideration for consolidated tangible assets of the Borrower and its Subsidiaries (as measured at the time of such Disposition is cash;
at the end of the most recently ended fiscal quarter for which financial statements have been furnished to the Administrative Agent under Section 6.01(a) or (iib) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately or, prior to or after giving pro forma effect to the Disposition;
(iv) to delivery of any such statements, for the extent not otherwise granted thereinfiscal quarter ended June 30, 2011)), then the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant shall deliver to the Administrative Agent a security interest in certificate of a Responsible Officer attaching calculations reasonably satisfactory to the Administrative Agent, (x) demonstrating:
(A) compliance with Section 7.11 on a pro forma basis as at the end of and for the most recently ended period of four fiscal quarters for which financial statements have been furnished to the Administrative Agent under Sections 6.01(a) or (b) (or, prior to the delivery of any non-cash consideration received in connection with a such statements, for the period of four fiscal quarters ended June 30, 2011) (such period, the “Testing Period”) giving effect to such Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; (as if such Disposition had occurred on the first day of the Testing Period), and
(vB) that Consolidated EBITDA for the aggregate book value Testing Period, on a pro forma basis after giving effect to such Disposition (as if such Disposition had occurred on the first day of the assets (or assets of the Person) subject such Testing Period), is not more than 7.5% lower than Consolidated EBITDA for such Testing Period without giving effect to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transaction.and
Appears in 1 contract
Samples: Credit Agreement (Athenahealth Inc)
Dispositions. Make Dispose, or permit any Disposition Subsidiary to Dispose, of any Collateral or any other property or assets of the Company or such Subsidiary, or enter into any agreement to make any such Disposition, except:
(a) Dispositions in the ordinary course of its business (permitted by Section 6.16, Section 7.03 or Section 7.05 and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyLiens permitted by Section 7.02;
(b) Dispositions of property by any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 Subsidiary to the Company or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06any other Subsidiary Guarantor and Dispositions of property by the Company to any Subsidiary Guarantor;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, Cash and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyCash Equivalents;
(d) Dispositions of (i) obsolete or worn-out property by (including leasehold interests), equipment or other tangible property no longer used or useful in their business, and (y) any inventory or other property (including receivables) sold or disposed of in the Borrower or any Restricted Subsidiary ordinary course of business and on ordinary business terms), provided that the Company may sublease real property to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely the extent such sublease would not interfere with respect to Dispositions the operation of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerBusiness;
(e) any Dispositions of Unencumbered Assets by the NewStar Collateral Subsidiary, by the Company, and by Investment Vehicles to NewStar Credit Opportunities Fund, Ltd., NewStar Credit Opportunities Funding I, NewStar Credit Opportunities Funding II, or to unaffiliated third parties; provided that (i) the party making the Disposition of assets or stock shall receive at least the Fair Market Value of the SubsidiariesUnencumbered Assets Disposed of, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(iii) at least 75% of the consideration for received in respect of such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
for Cash, and (iii) no Default exists or would exist immediately prior to or after giving pro forma effect to such Disposition and the Disposition;
(iv) to application of the extent not otherwise granted thereinproceeds thereof, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) Coverage Test shall not exceed $100,000,000 after the Closing Datebe satisfied;
(f) Dispositions of Unencumbered Assets by the NewStar Collateral Subsidiary and/or by the Company to Investment Vehicles and by Investment Vehicles to the NewStar Collateral Subsidiary, to the Company, or to other Investment Vehicles, provided that after giving effect to any such Disposition results from a casualty and the application of the proceeds thereof, the Coverage Test shall be satisfied, and further provided that if after to giving effect to any such Disposition pursuant to this clause (f) and the application of the proceeds thereof, the Collateral Availability is less than $10,000,000, then such Disposition shall be subject to the approval of the Administrative Agent, such approval not to be unreasonably withheld, conditioned or condemnation in respect of such property or assetsdelayed;
(g) Dispositions of Collateral to Investment Vehicles in exchange for other Collateral in accordance with the Company’s ordinary course substitution and trading mechanism, its Contractual Obligations and Requirements of Law, provided that after giving effect to any such Disposition consists Disposition, the Coverage Test shall be satisfied; and
(h) Dispositions of Workout Assets to non-Affiliates that (i) are seller-financed by the sale Company or discount any of overdue accounts receivable its Subsidiaries, or (ii) are made in the ordinary course of businessbusiness on arm’s length terms, but only provided that in connection with each case, both before and after giving effect thereto, the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionCoverage Test shall be satisfied.
Appears in 1 contract
Samples: Revolving Credit Facility (NewStar Financial, Inc.)
Dispositions. Make Sell, lease or make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the Ordinary Course of Business to Persons;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the Ordinary Course of Business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or for use in the Ordinary Course of Business, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment property for use in the Ordinary Course of Business or real property, and (iii) the board of directors or senior management of the Borrower or such Subsidiary has determined in each case if good faith that the disposed failure to replace such property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx will not be detrimental to the Administrative Agent (including business of the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on Borrower or such new or replacement propertySubsidiary;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition Dispositions comprising transactions expressly permitted by Section 7.04(a) through
(f) non-exclusive licenses of assets or stock IP Rights in the Ordinary Course of the Subsidiaries, so long as Business and substantially consistent with past practice for terms not exceeding five years; and
(with respect g) other Dispositions to each such DispositionPersons other than an Unrestricted Subsidiary of property (other than accounts and notes receivable) such Disposition is for fair market value and:
not described in subsections (a) through (f) of this Section 7.05; provided (i) no Default or Event of Default exists at least 75% of the consideration for such Disposition is cash;
time or would occur as a result thereof, and (ii) the Net Cash Proceeds are applied aggregate consideration from such Dispositions received by the Borrower and its Restricted Subsidiaries, including aggregate cash received and the aggregate fair market value of non-cash property received, shall not exceed 5% of the total assets of the Borrower and its Restricted Subsidiaries (determined on a consolidated basis in accordance with Section 2.06(d);
(iiiGAAP) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value as of the assets (or assets end of the PersonBorrower’s most recently ended fiscal year; provided that any Disposition pursuant to subsections (a) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
through (g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthis Section 7.05 shall be for fair market value.
Appears in 1 contract
Dispositions. Make The Investor shall not, directly or indirectly, sell, assign, transfer, pledge, hypothecate or otherwise dispose of any Disposition interest in any Convertible Preferred Securities or enter into any agreement to make any Conversion Shares (a "Disposition"), except:except as set forth in this Section 5.
(a) Dispositions may be made at any time and from time to time following the Closing Time, to one or more wholly-owned subsidiaries of the Investor, provided that each such subsidiary agrees in writing to be bound by this Agreement to the same extent as the Investor.
(b) Dispositions may be made (i) following the second anniversary of the Closing Time, in a bona fide public offering effected in accordance with the provisions of the Registration Rights Agreement; and (ii) following the earlier of the third anniversary of the Closing Time and the occurrence of a "change of control" (as hereinafter defined), provided, however, that Dispositions shall not be made pursuant to clauses (i) and (ii) of this Section 5(b) to any person who, to the actual knowledge of the Investor (without any duty of inquiry) in the case of Dispositions to be made pursuant to bona fide open market "brokers transactions" as permitted pursuant to the provisions of Rule 144 promulgated under the Securities Act and to the knowledge of the Investor (after reasonable inquiry) in all other cases, is (x) a Significant Competitor of the Company (as hereinafter defined), (y) a person that is or theretofore had been engaged in any material litigation adverse to the Company or any of its affiliates or (z) a person (other than any underwriter who is in the business of underwriting securities and who, in the ordinary course of its business (and neither constitutes a Disposition of all as an underwriter, acquired Convertible Preferred Securities or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made Conversion Shares in connection with a Permitted Receivables Transaction) or public offering with the bona fide intention of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions reselling all of the stock of a Restricted Subsidiary securities so acquired pursuant to such public offering) who, after acquiring such interest in Convertible Preferred Securities or Common Stock, would beneficially own voting securities of the Borrower, Company representing more than 10% of the Borroweroutstanding shares of voting securities of the Company (assuming any Convertible Preferred Securities owned by such person were converted into Common Stock); provided that if any Disposition proposed to be made by the transferor of such property is the Borrower or a Guarantor, the transferee thereof must Investor pursuant to this Section 5(b) shall be a Guarantor or, subject to the limitation aboveCompany's prior right of first refusal as set forth in Section 6 of this Agreement and, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course case of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is Dispositions to be made pursuant to a Permitted Receivables Transaction.to
Appears in 1 contract
Samples: Investment Agreement (Inco LTD)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the any Subsidiary to Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions permitted by Section 7.04;
(f) Dispositions of assets interests in oil and gas leases, or stock of the Subsidiariesportions thereof (if released or abandoned but not otherwise sold or transferred), so long as no well situated on any such lease, or located on any unit containing all or any part thereof, is capable (with respect or is subject to each such Dispositionbeing made capable through commercially feasible operations) such Disposition is of producing oil, gas or other hydrocarbons or minerals in commercial quantities; and
(g) Dispositions of Oil and Gas Properties that are sold for fair market value and:
consideration to a Person who is not an Affiliate, provided that (i) at least 75the maximum aggregate amount of such sales in the period between two regular Determination Dates is limited to Oil and Gas Properties that account for no more than 10% of the consideration for such Disposition is cash;
Borrowing Base then in effect (“Permitted Property Sales”), (ii) at least 90% of the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for such Permitted Property Sales must be in this Section 8.05(e) that is evidenced by a promissory note cash or other written instrumentcash equivalents; and
(viii) the aggregate book Borrowing Base shall be decreased by the Borrowing Base value attributable to such Oil and Gas Properties (or if greater, the Net Cash Proceeds from such Permitted Property Sale) and, after giving effect to any Permitted Property Sale and to the application of the assets proceeds to outstanding Credit Extensions, no Borrowing Base Deficiency shall exist; and (iv) after giving effect to any Permitted Property Sale no Default or assets Event of the PersonDefault shall exist; provided, however, that any Disposition pursuant to clauses (a) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
through (g) shall be for fair market value. No Loan Party will abandon or consent to the abandonment of, any oil or gas well constituting Collateral so long as such Disposition consists well is capable (or is subject to being made capable through drilling, reworking or other operations which it would be commercially feasible to conduct) of producing oil, gas, or other hydrocarbons or other minerals in commercial quantities (as determined without considering the effect of any Mortgage). No Loan Party will elect not to participate in a proposed operation on any oil and gas property constituting Collateral where the effect of such election would be the forfeiture either temporarily (e.g., until a certain sum of money is received out of the sale forfeited interest) or discount permanently of overdue accounts receivable any interest in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionCollateral.
Appears in 1 contract
Dispositions. 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 its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Company or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that (i) if the transferor of such property is the Borrower or a GuarantorLoan Party, either (x) the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
Loan Party or (ey) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets of the Loan Parties after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith pursuant to the definition of Non-Core Asset Disposition Related Transactions or Section 7.04(a) that have the effect of transferring assets from Restricted Subsidiaries that are Loan Parties to Restricted Subsidiaries that are non-Loan Parties) constitutes 75% or more of the book value of all assets of the Person(s)Company and its wholly-owned Restricted Subsidiaries on a consolidated basis as of the end of the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01 and (ii) Disposed if the transferor of in reliance such property is a Loan Party other than a Foreign Obligor, either (x) the transferee thereof must be a Loan Party other than a Foreign Obligor or (y) or (y) the aggregate book value of all assets of the Loan Parties after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith pursuant to the definition of Non-Core Asset Disposition Related Transactions or Section 7.04(a) that have the effect of transferring assets from Restricted Subsidiaries that are Loan Parties to Restricted Subsidiaries that are non-Loan Parties) constitutes 75% or more of the book value of all assets of the Company and its wholly-owned Restricted Subsidiaries on this clause a consolidated basis as of the end of the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01;
(e) shall not exceed $100,000,000 after the Closing Date;(i) Dispositions permitted by Section 7.04 (other than Section 7.04(f)) and (ii) Permitted Liens;
(f) such Disposition results from a casualty Dispositions by the Company and its Restricted Subsidiaries required to comply with relevant antitrust Laws in connection with the Acquisition or condemnation in respect of such property or assets;any Permitted Acquisition;
(g) such Disposition consists of the sale leases, subleases, licenses or discount of overdue accounts receivable sublicenses granted in the ordinary course of business, but only which could not reasonably be expected to have a Material Adverse Effect;
(h) the sale or other transfer of accounts receivable in connection with the compromise securitization thereof and/or factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Company or collection thereofany Restricted Subsidiary, within the limits set forth in Section 7.02(f); or
(hi) so long as no Default shall have occurred and be continuing, or would result therefrom, other Dispositions made after the Closing2021 Refinancing Amendment Effective Date with an aggregate fair market value for all such Dispositions not to exceed twenty percent (20%) of consolidated total assets of the Company and its Restricted Subsidiaries as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01 (compliance to be measured with respect to any Disposition on the date of such Disposition is made or, at the Company’s election in writing, on the date of Accounts and related assets and is made pursuant the agreement of the Company or any Restricted Subsidiary to a Permitted Receivables Transaction.make such Disposition);
Appears in 1 contract
Samples: Credit Agreement (Aecom)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 Dispositions or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06sales of hydrocarbons in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Borrower or to a wholly-owned Restricted Subsidiary (other than excluding (x) a Receivables Co.) or, solely with Subsidiary which is obligated in respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerFacility and (y) Harvest Holding LLC); provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions of assets related to the Monument Butte Extension area in Utah for cash and possible payment of past costs;
(f) Farmouts of a percentage of Subsidiaries’ working interest in the Gabon Project for cash and possible payment of past costs;
(g) Farmouts of a percentage of Subsidiaries’ working interest for cash and possible payment of past costs in the Oman Project;
(h) Farmouts of a percentage of Subsidiaries’ working interest, payment of past costs or stock receipt of a carried interest in future exploration and development costs in the West Bay Project;
(i) Farmouts of a percentage of the Subsidiaries’ working interest, payment of past costs or receipt of a carried interest in future exploration and development costs in the Budong Budong, Indonesia Project;
(j) Disposition of all or part of the Borrower’s or its Subsidiaries’ Equity Interest in Fusion LLC;
(k) Disposition of all or part of Subsidiaries’ interest in the WAB-21 Block Project;
(l) Execution of an agreement to enter into a Strategic Transaction, so long as such agreement at all times provides for the repayment at the closing of such Strategic Transaction of the Obligations in full in cash; provided that no such Strategic Transaction shall be consummated and no Disposition shall occur pursuant to such agreement unless and until the Obligations have been paid in full in cash;
(m) Entering into of any West Bay Leases;
(n) Entering into any assignments of leasehold interests to form AMIs (Areas of Mutual Interest) with respect third parties in the ordinary course of business and on customary terms and conditions;
(o) Dispositions permitted by Section 7.04;
(p) Subject to each such DispositionSection 7.14, Dispositions by the Borrower and its Subsidiaries of property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed $5,000,000 in any fiscal year;
(q) such Disposition is for fair market value and:
Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at least 75% the time of the consideration for such Disposition is cash;
Disposition, no Default or Event of Default shall exist or would result from such Disposition, (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eq) in any fiscal year shall not exceed $100,000,000 after 5,000,000 and (iii) the Closing Datepurchase price for such asset shall be paid to the Borrower or such Subsidiary solely in cash;
(fr) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable oil and gas properties in the ordinary course of business, but only business not exceeding $20,000,000 in connection with the compromise or collection thereof; oraggregate and not otherwise permitted under this Section 7.05;
(hs) A Disposition in the form of the execution of an agreement to make a Restricted Payment as permitted by Section 7.02(m), so long as such agreement at all times provides for the repayment at the closing of such Strategic Transaction of the Obligations in full in cash; provided that no such Disposition is and Strategic Transaction shall be consummated unless and until the Obligations have been paid in full in cash; and
(t) A Disposition in the form of Accounts and related assets and is made cash as permitted by Section 7.03(c)(v). provided, however, that any Disposition pursuant to a Permitted Receivables TransactionSection 7.05(a) through Section 7.05(s) shall be for fair market value.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) (i) so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions for fair market value of equipment or real property to the extent that (iA) such equipment or real 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 equipment or real property, property and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documentsii) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect x) there exists no Default before and/or after giving effect to each such Disposition) and every such Disposition and exchange on a Pro Forma Basis and (y) the Leverage Ratio is for fair market value and:
(i) at least 75% less than or equal to 3.50 to 1.00 on and prior to the date of the consideration for any component of any such Disposition is cash;
and exchange (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
such Disposition and exchange computed on a Pro Forma Basis), Dispositions of assets (ivincluding one or more Subsidiaries) to the extent not otherwise granted thereinexchanged for other like assets (including any Person that becomes a Subsidiary as a result of such exchange), the Borrower agrees that it willso long as, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries toafter giving effect thereto, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vA) the aggregate book value portion of the assets (or assets of the Person) subject EBITDA attributable to such DispositionDisposed assets, when taken together with the aggregate book value added to that portion of EBITDA attributable to all other assets (or assets of the Person(s)) Disposed of in reliance on this clause subsection (c)(ii), does not exceed 20% of EBITDA as set forth in the most recent financial information delivered to the Administrative Agent pursuant to Section 6.01(a) or (b), (B) any Investment in connection therewith is permitted by Section 7.02; (C) such exchange is for fair market value, (D) any consideration for any such exchange that does not constitute like assets is paid to the Borrower or such Subsidiary on the closing date of such Disposition in cash, and (E) the Borrower complies with Section 2.04(b) with respect to all such cash received;
(d) so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions of property by any Subsidiary to the Borrower or to a Wholly-Owned Subsidiary that is a Loan Party;
(e) shall not exceed so long as there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, Dispositions of assets with a book value of zero and a market value of less than $100,000,000 after the Closing Date10,000 to be Disposed with no consideration or for non-cash consideration;
(f) so long as (i) there exists no Default before and/or after giving effect to each and every such Disposition results from on a casualty or condemnation Pro Forma Basis and (ii) not less than 80% of the aggregate purchase price for any such Disposition is paid in respect cash on the date of such sale, Dispositions by the Borrower and its Subsidiaries of property or assetspursuant to sale-leaseback transactions permitted by Section 7.12;
(g) such Disposition consists non-exclusive licenses of the sale or discount of overdue accounts receivable IP Rights in the ordinary course of business, but only in connection business and substantially consistent with the compromise or collection thereof; orpast practice;
(h) Liens permitted under Section 7.01; and
(i) so long as (i) there exists no Default before and/or after giving effect to each and every such Disposition on a Pro Forma Basis, (ii) not less than 80% of the aggregate purchase price for any such Disposition is paid in cash on the date of Accounts sale, provided that all pension funding liabilities assumed by the buyer in connection with such Disposition shall be included as a non-cash item in any calculation of the aggregate purchase price for such Disposition (for the avoidance of doubt, all pension funding liabilities assumed by the buyer in connection with such Disposition shall be subject to the 20% non-cash limitation for Dispositions), (iii) no Material Adverse Effect exists or would result therefrom before and after giving effect to such Disposition, (iv) such Disposition shall be for fair market value, and (v) the Net Cash Proceeds of any such Disposition are immediately used to prepay the Obligations as set forth in Section 2.04(b), other Dispositions not constituting all or substantially all of the assets of the Borrower. Upon any Disposition in accordance with this Section 7.05 and the payment of any related mandatory prepayment (if any) required in accordance with Section 2.04(b), (A) of any assets in accordance with the terms of this Section 7.05, the Administrative Agent will, if applicable, direct the Collateral Agent to terminate and release any and all Liens under the Collateral Documents on such assets being disposed (and direct the Collateral Agent to deliver to the applicable Loan Party any such Collateral being released that is made pursuant held by the Collateral Agent) and (B) of a Subsidiary that is a Guarantor in accordance with the terms of clause (h) preceding, the Administrative Agent will, if applicable, direct the Collateral Agent to a Permitted Receivables Transactionterminate and release such Guarantor Subsidiary from the Guaranty or Guaranty Joinder.
Appears in 1 contract
Samples: Credit Agreement (Media General Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transactioni) or of obsolete or worn out property, whether now owned or hereafter acquired in the ordinary course of business and (ii) consisting of the abandonment, lapse or other disposition of intellectual property that is not material or useful to the business of the Borrower or any of its Restricted Subsidiaries (or otherwise of material value to the Borrower and its Restricted Subsidiaries taken as a whole);
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02Dispositions of inventory, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06cash and Cash Equivalents in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Borrower or to another Restricted Subsidiary; provided that (x) if the transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be the Borrower, a wholly-owned Subsidiary or become a wholly-owned Subsidiary, (y) if the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower, a Guarantor or become a Guarantor in accordance with Section 6.14 and (z) if the transferor in such transaction is a Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of then the stock of transferee must either be the Borrower, a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or become a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerRestricted Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
Dispositions (i) at least 75% of the consideration for such Disposition is cash;
permitted by Section 7.04(a), Section 7.04(b) or Section 7.04(c), (ii) constituting an Investment permitted by Section 7.02, (iii) constituting a Restricted Payment permitted pursuant to Section 7.06 or (iv) constituting the Net Cash Proceeds are applied grant of Liens (or foreclosure thereon) permitted by Section 7.01, in each case, made in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, terms and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateconditions applicable thereto;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsaccounts receivable (and related supporting obligations and books and records) subject to any Permitted Securitization Facility;
(g) Asset Swaps; provided that to the extent any asset sold or exchanged is Collateral, the purchased Related Business Asset shall become Collateral and the relevant Loan Party shall execute any necessary Collateral Documents to effectuate such Disposition consists security interest;
(h) non-exclusive licenses, sublicenses, leases or subleases (including any non-exclusive license or sublicense of intellectual property) granted to third parties in the ordinary course of business not interfering in any material respect with the business of the sale Borrower or discount any of overdue accounts receivable its Restricted Subsidiaries;
(i) sales or discounting or forgiveness, on a non-recourse basis and in the ordinary course of business, but only of past due accounts in connection with the collection or compromise or collection thereof; or;
(hj) the sale or transfer of accounts receivable (and related supporting obligations and books and records) subject to any Permitted Securitization Facility;
(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 of its Restricted Subsidiaries; provided the proceeds of any such Disposition are applied in accordance with Section 2.05(b)(iii) if and to the extent required thereby;
(l) the unwinding of any Swap Contract pursuant to its terms;
(m) Dispositions resulting from (i) conversion of any intercompany Indebtedness to Equity Interests and (ii) settlement, discounting, writing off, forgiveness, cancelation, surrender, waiver or release of any intercompany Indebtedness or other obligation owing to the Borrower or any Restricted Subsidiary;
(n) Dispositions by the Borrower or any Restricted Subsidiaries in an amount not to exceed $20,000,000 in any calendar year; and
(o) other Dispositions by the Borrower or any Restricted Subsidiaries; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result therefrom, (ii) the consideration for any such Disposition shall be at least 70% cash or Cash Equivalents (the “Cash Consideration Requirement”); provided that the following shall be deemed cash for purposes of the Cash Consideration Requirement: (A) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or a Restricted Subsidiary) of the Borrower or any applicable Restricted Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are (x) assumed by the transferee of any such assets or (y) otherwise cancelled or terminated in connection with the transaction with such transferee and, in each case, for which the Borrower and its Restricted Subsidiaries (to the extent previously liable thereunder) shall have been validly released by all relevant creditors in writing, (B) any securities, notes or other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee that are converted by such Person into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred eighty (180) days following the closing of the applicable Disposition 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 $100,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (iii) such disposition shall be for at least the fair market value (as determined by the Borrower in good faith) of the assets or property subject to such Disposition, and (iv) the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from Dispositions pursuant to this clause (no) shall be applied to prepay the Loans to the extent required by Section 2.05(b)(iii). Notwithstanding anything to the contrary in this Agreement, none of the Loan Parties shall contribute or Dispose of to any Unrestricted Subsidiary any intellectual property that is material to the Borrower and its Subsidiaries, taken as a whole. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person (other than a Loan Party), such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested of the Administrative Agent, upon the certification by the Borrower that such Disposition is of Accounts and related assets and is made pursuant permitted by this Agreement, the Administrative Agent shall be authorized to a Permitted Receivables Transactiontake any actions deemed appropriate in order to effect the foregoing in accordance with Section 9.10.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of 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) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower to any Subsidiary, or by any Restricted Subsidiary to the Borrower or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerGuarantor; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions of assets or stock accounts receivable for purposes of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datecollection;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable investment securities and cash equivalents in the ordinary course of business, but only ;
(g) Dispositions permitted by Section 7.04;
(h) Dispositions by the Borrower and its Subsidiaries of property acquired in connection with the compromise or collection thereofCinema Acquisition pursuant to sale-leaseback transactions; orprovided that all Net Cash Proceeds received from such Dispositions in excess of $3,000,000 in the aggregate shall be applied to the prepayment of the Loans pursuant to Section 2.05(b); and
(hi) Dispositions by the Borrower and its Subsidiaries of property acquired after the date hereof in Permitted Acquisitions; provided that (i) the Borrower identifies any such Disposition is assets to be divested in reasonable detail in writing to the Administrative Agent on or before the closing date of Accounts such Permitted Acquisition and related (ii) the fair market value of the assets to be divested in connection with any Permitted Acquisition (as reasonably determined by the board of directors of the Borrower) do not exceed an amount equal to twenty-five percent (25%) of the total cash and is made pursuant to a non-cash consideration (as determined in accordance with clause (f) of the definition of “Permitted Receivables TransactionAcquisition”) for such Permitted Acquisition.
Appears in 1 contract
Samples: Credit Agreement (Diamond Foods Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of used, surplus, obsolete, unproductive or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned the Borrower or to another Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a GuarantorDomestic Obligor, either (i) the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets Domestic Obligor or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets of the Domestic Obligors after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith) constitutes 75% or more of the book value of all assets of KBR and its Wholly-Owned Restricted Subsidiaries on a consolidated basis as of the Person(s)) Disposed end of in reliance on this clause the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01;
(e) shall not exceed $100,000,000 after the Closing DateDispositions permitted by Section 7.04 and Permitted Liens;
(f) such Disposition results from a casualty Dispositions by the Borrower and its Restricted Subsidiaries of assets that are necessary or condemnation advisable, in respect the good faith judgment of such property the Borrower, in order to obtain the approval of any Governmental Authority to consummate or assetsavoid the prohibition or other restrictions on the consummation of any Permitted Acquisition or any Investment permitted hereunder;
(g) such Disposition consists of the sale leases, subleases, licenses or discount of overdue accounts receivable sublicenses granted in the ordinary course of business, but only which could not reasonably be expected to have a Material Adverse Effect;
(h) the sale or other transfer of Qualified Securitization Assets in connection with the compromise securitization thereof and/or factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Borrower or collection thereof; orany Restricted Subsidiary, within the limits set forth in Section 7.02(f);
(hi) Dispositions of cash and Cash Equivalents;
(j) Dispositions of assets within 365 days after the acquisition thereof if such assets are outside the principal business areas to which the assets acquired, taken as a whole, relate;
(k) in order to collect receivables in the ordinary course of business, resolve disputes that occur in the ordinary course of business or engage in transactions with government agencies in the ordinary course of business, Disposition of, discount or otherwise compromise of for less than the face value thereof, notes or accounts receivable, so long as no such Disposition, discount or other compromise gives rise to any Indebtedness, any Lien on any note or account receivable, or is made as part of any accounts receivable securitization program;
(l) Dispositions of shares of Equity Interests of any of its Subsidiaries in order to qualify members of the board of directors or equivalent governing body of any such Subsidiary if required by applicable Law;
(m) Dispositions of condemned property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and Dispositions of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(n) Dispositions by the Borrower or any of its Restricted Subsidiaries of Equity Interests in (and assets of) Unrestricted Subsidiaries held by the Borrower or any of its Restricted Subsidiaries;
(o) the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(p) lapse, abandonment or other Disposition of intellectual property, that is in the reasonable business judgment of the Borrower, no longer used or useful in the conduct of its business or otherwise uneconomical to prosecute or maintain, in each case with respect to all of the foregoing in the ordinary course of business;
(q) Dispositions not otherwise permitted pursuant to this Section 7.05; provided that:
(i) at the time of such Disposition, no Default or Event of Default shall exist or would result from such Disposition except if such Disposition is made pursuant to an agreement entered into at a time when no Default or Event of Default exists,
(ii) such Disposition is made for fair market value (as reasonably determined by the Borrower and measured as of Accounts the date a legally binding commitment for such Disposition was entered into),
(iii) the consideration received shall be no less than 75% in cash, Cash Equivalents and/or Designated Non-Cash Consideration (with no more than 25% of the aggregate consideration being in the form of Designated Non Cash Consideration, as such percentages are measured as of the date a legally binding commitment for such Disposition was entered into, and
(iv) Net Cash Proceeds thereof are applied in accordance with Section 2.05(b);
(r) any Exempt Sale and related assets and is made pursuant Leaseback Transaction;
(s) the disposition, termination or unwinding of Swap Obligations permitted hereunder or any Permitted Bond Hedge Transaction permitted hereunder;
(t) Dispositions by the Borrower or any Restricted Subsidiary of any Disqualified Stock (including any Permitted Convertible Indebtedness) to the extent permitted under Section 7.02;
(u) Dispositions by the Borrower or any Restricted Subsidiary of any Permitted Warrant Transaction substantially concurrently with any issuance or sale of Permitted Convertible Indebtedness permitted hereunder;
(v) Dispositions by the Borrower or any Restricted Subsidiary of its Equity Interests (excluding Disqualified Stock) to the extent not constituting a Permitted Receivables Transaction.Change of Control;
Appears in 1 contract
Samples: Credit Agreement (Kbr, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property no longer used in the business of the Borrower or its Subsidiaries, whether now or hereafter owned or leased, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertysuch Loan Party;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted to Subsidiary Guarantor or by the Borrower to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) Dispositions permitted by Section 7.04;
(f) cancellations of any Disposition intercompany Indebtedness among the Loan Parties;
(g) the licensing of assets intellectual property to third Persons on customary terms in the ordinary course of business;
(h) the sale, lease, sub-lease, license, sub-license or stock consignment of personal property of the Subsidiaries, so long as Borrower or its Subsidiaries in the ordinary course of business and leases or subleases of real property permitted by clause (with respect to each such Dispositiona) such Disposition is for fair market value and:which rentals are paid on a periodic basis over the term thereof;
(i) at least 75% the settlement or write-off of accounts receivable or sale, discount or compromise of overdue accounts receivable for collection in the consideration for such Disposition is cashordinary course of business consistent with past practice;
(iij) the Net sale, exchange or other disposition of cash and Cash Proceeds are applied Equivalents in accordance with Section 2.06(d)the ordinary course of business;
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(ivk) to the extent not otherwise granted thereinrequired by applicable law, the sale or other disposition of a nominal amount of Equity Interests in the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant or any Subsidiary on terms acceptable to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in order to qualify members of the board of directors or equivalent governing body of the Borrower or such Subsidiary;
(l) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 8.05(e7.05; provided that (i) that is evidenced by a promissory note at the time of such Disposition, no Default shall exist or other written instrument; and
would result from such Disposition, (vii) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (el) shall not exceed $100,000,000 after 4,000,000 in any fiscal year or $10,000,000 in the Closing Dateaggregate during the term of this Agreement and (iii) at least 75% of the purchase price for such asset shall be paid to the Borrower or such Subsidiary in cash
(m) Dispositions constituting a transfer of property subject to a casualty (i) upon receipt of net proceeds of such casualty or (ii) to a Governmental Authority as a result of condemnation;
(fn) such Disposition results from sales of non-core assets acquired in connection with a casualty Permitted Acquisition which are not used or condemnation useful or are duplicative in respect the business of such property the Borrower or assets;its Subsidiaries; and
(go) such Disposition consists a grant of the sale options to purchase, lease or discount of overdue accounts receivable acquire real or personal property in the ordinary course of business, but only so long as the Disposition resulting from the exercise of such option would otherwise be permitted under this Section 7.05; provided, however, that any Disposition pursuant to Section 7.05(a) through Section 7.05(m) (other than Section 7.05(d)) shall in connection with any event be for fair market value; provided further that in the compromise or collection thereof; or
(h) event any Disposition otherwise permitted under this Section 7.05 shall consist of a Disposition of Equity Interests in a Subsidiary, such Disposition is shall in no event be of Accounts and related assets and is made less than 100% of such Equity Interests, except in the case of a Disposition pursuant to a Permitted Receivables TransactionSection 7.05(k).
Appears in 1 contract
Samples: First Lien Senior Secured Credit Agreement (WII Components, Inc.)
Dispositions. Make any Disposition of any of its property whether now owned or enter into hereafter acquired (other than treasury stock of Newpark (i) issued pursuant to any agreement employee or director benefit plan approved by the shareholders of Newpark or (ii) to make the extent Regulation U would be violated by restrictions under this Section 7.05) or, in the case of any DispositionSubsidiary, issue or sell any shares of such Subsidiary’s Equity Interests to any Person, except:
(a) Dispositions the Disposition of obsolete or worn out property or equipment no longer used or useful in the business of Newpark or its Subsidiaries, in each case in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes the sale or lease of Inventory (iincluding wooden and composite mats removed from Newpark or its Subsidiaries’ rental fleet and sold as used mats) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06in the ordinary course of business;
(c) Dispositions permitted by Section 7.04 and Dispositions of Cash Equivalents for fair market value of equipment cash or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyother Cash Equivalents;
(d) Dispositions the sale or issuance of property by the Borrower any Subsidiary’s Equity Interests to Newpark or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerSubsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect Dispositions pursuant to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing DatePermitted Sale Leaseback Transaction;
(f) such the Disposition results from of other property (including, but not limited to, Equity Interests issued by any Subsidiary) having a casualty book value in the aggregate (i) during any fiscal year not to exceed 5% of Consolidated Tangible Assets (calculated as an average of Consolidated Tangible Assets as of the last day of the most recently ended four fiscal quarters for which financial statements have been delivered pursuant to Section 6.01(a) or condemnation in respect (b)) and (ii) during the term of such property this Agreement beginning with the Closing Date and ending on the Maturity Date, not to exceed 15% of Consolidated Tangible Assets (calculated as an average of Consolidated Tangible Assets as of the last day of each fiscal quarter ending on or assetsafter March 31, 2022 for which financial statements have been delivered pursuant to Section 6.01(a) or (b));
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; orSpecified Dispositions;
(h) such the Disposition is of Accounts the Real Estate located in Texas covered by a Mortgage;
(i) Dispositions of property (i) by any Loan Party to any other Loan Party and related assets and is made pursuant (ii) by any non-Loan Party to a Permitted Receivables Transactionany Loan Party or another non-Loan Party; and
(j) Dispositions of property subject to condemnation, takings or casualty events.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of Cash Equivalents and Inventory in the ordinary course Ordinary Course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyBusiness;
(b) (i) Dispositions in the Ordinary Course of Business of property that is obsolete, worn out or no longer useful in the Ordinary Course of Business and (ii) disposition of other assets, in each case for so long as (x) the aggregate fair market value or a book value, whichever is more, of such equipment, fixed assets and other assets does not exceed the greater of (A) $7,500,000 and (B) 15% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in any twelve-month period and (y) all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the applicable intercreditor or subordination provisions or agreement reasonably satisfactory to the Administrative Agent executed or entered into in connection with Subordinated Indebtedness incurred pursuant to Section 7.01(v) and solely to the extent required by a corresponding mandatory prepayment provision in the applicable documentation governing such Subordinated Indebtedness, remitted to the applicable holders of such Subordinated Indebtedness (or administrative agent for such holders) for application in accordance with such corresponding mandatory prepayment provision;
(c) any Disposition that constitutes (i) an Investment permitted under Section 8.027.03, (ii) a Lien permitted under Section 8.01 7.02, (iii) a merger, dissolution, consolidation or liquidation permitted under Section 8.04(a) or (b)7.04, or (iiiiv) a Restricted Payment permitted under Section 8.067.06;
(cd) such Disposition that results from a casualty or condemnation in respect of such property or assets so long as all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the applicable intercreditor or subordination provisions or agreement reasonably satisfactory to the Administrative Agent executed or entered into in connection with Subordinated Indebtedness incurred pursuant to Section 7.01(v) and solely to the extent required by a corresponding mandatory prepayment provision in the applicable documentation governing such Subordinated Indebtedness, remitted to the applicable holders of such Subordinated Indebtedness (or administrative agent for such holders) for application in accordance with such corresponding mandatory prepayment provision;
(e) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business, but only in connection with the compromise or collection of delinquent accounts or other accounts which, in the applicable Loan Party’s or Subsidiary’s reasonable business judgment, are doubtful of collection,
(f) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business;
(g) the lapse, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Loan Party or Subsidiary, no longer material to the conduct of the business of the Loan Parties or any of their Subsidiaries;
(i) Dispositions for fair market value among the Loan Parties (other than to Holdings except in respect of equipment dispositions of Equity Interests) or real by any Subsidiary to a Loan Party (other than to Holdings except in respect of dispositions of Equity Interests), and (ii) Dispositions by any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(i) Dispositions of property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(dj) Dispositions of property Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Foreign Subsidiaries of the Borrowers may sell or dispose of Equity Interests to qualify directors where required by the Borrower applicable law or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (satisfy other than a Receivables Co.) or, solely requirements of applicable law with respect to the ownership of Equity Interests;
(m) Permitted Sale Leasebacks; and
(n) other Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerproperty; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least seventy-five percent (75% %) of the consideration for proceeds of such Disposition is cash;
in aggregate amount at any time in excess of $5,000,000 consist of cash or Cash Equivalents, (ii) the Net Cash Proceeds applicable Loan Party receives fair market value for such property (as determined by the Borrowers in good faith), (iii) all proceeds thereof are applied remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(d);
(iii2.06(b)(ii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
if required thereby, and (iv) to at the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each time of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) other than any such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionlegally binding commitment therefor entered into at a time when no Event of Default then existed), no Event of Default shall exist at the time of or would result from such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and the Administrative Agent shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Dispositions. Make The Borrower shall not and shall not permit anyRestricted Subsidiary to make any Disposition or enter into any agreement to make any Disposition, ,except:
: (a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 whether now owned or Section 8.04(a) or (b)hereafteracquired, or (iii) a in the ordinary course of business and Dispositions of property no longer used oruseful in the conduct of the business of the Borrower and the Restricted Payment permitted under Section 8.06;
(cSubsidiaries;(b) Dispositions of inventory, goods held for fair market value sale and immaterial assets in theordinary course of equipment or real business;(c) Dispositions of property to the extent that (i) such equipment or real property is exchanged for credit forcredit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition suchDisposition are reasonably promptly applied to the purchase price of such similar replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(dproperty;(d) Dispositions of property by to the Borrower or to a Restricted Subsidiary(including through the dissolution of any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary); provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable Dispositionsare in the ordinary course of businessbusiness at prices and on terms and conditions not less favorable tothe Borrower or any applicable Restricted Subsidiary than could be obtained on an arm’s lengthbasis from unrelated third parties;(e) Dispositions permitted by Sections 6.03 and 6.04, but only Liens permitted bySection 6.02 and Investments permitted by Section 6.07, in each case other than by reference tothis Section 6.06(e);(f) Dispositions of Cash Equivalents;(g) Dispositions of accounts receivable in connection with the compromise collection orcompromise thereof or collection thereof; orDispositions of accounts receivable, payment intangibles and relatedassets in connection with any Receivables Facility permitted under Section 6.01(b)(i);(h) leases, subleases, assignments, licenses or sublicenses, in each case in theordinary course of business and which do not materially interfere with the business of theBorrower and the Restricted Subsidiaries;-105-
(hi) transfers of property subject to Casualty Events upon receipt of the Net CashProceeds of such Casualty Event;(j) Dispositions of property (other than any disposition of assets in connection witha securitization transaction) not otherwise permitted under this Section 6.06; provided that (i) atthe time of such Disposition is of Accounts and related assets and is (other than any such Disposition made pursuant to a legally bindingcommitment entered into at a time when no Default exists), no Default or Event of Default shallexist or would result from such Disposition and (ii) with respect to any Disposition pursuant tothis clause (j) with an aggregate fair market value in excess of $50.0 million, the Borrower or aRestricted Subsidiary shall receive not less than 75% of such consideration in the form of cashor Cash Equivalents (in each case, free and clear of all Liens at the time received, other thannonconsensual Liens permitted by Section 7.02); provided, however, that for the purposes of thissubclause (j)(ii), (A) any liabilities (as shown on the most recent consolidated balance sheet ofthe Borrower provided hereunder or in the footnotes thereto) of the Borrower or such RestrictedSubsidiary, other than with respect to Indebtedness that is not secured by the assets disposed of,that are assumed by the transferee with respect to the applicable Disposition and for which theBorrower and all of the Restricted Subsidiaries shall have been validly released by all applicablecreditors, (B) any securities received by the Borrower or such Restricted Subsidiary from suchtransferee that are converted by the Borrower or such Restricted Subsidiary into cash (to theextent of the cash received) within 180 days following the closing of the applicable Dispositionand (C) any Designated Noncash Consideration received by the Borrower or such RestrictedSubsidiary in respect of such Disposition having an aggregate fair market value, taken togetherwith all other Designated Noncash Consideration received pursuant to this subclause (C) that isat that time outstanding, not in excess of the greater of (x) $150.0 million and (y) 35.0% ofEBITDA of the Borrower for the most recently ended Test Period at the time of the receipt ofsuch Designated Noncash Consideration, with the fair market value of each item of DesignatedNoncash Consideration being measured at the time received and without giving effect tosubsequent changes in value, shall in each case of subclauses (A), (B) and (C) be deemed to becash; (k) any issuance or sale of Equity Interests in, or Indebtedness or other securities of,an Unrestricted Subsidiary;(l) to the extent allowable under Section 1031 of the Code (or comparable orsuccessor provision), any exchange of like property (excluding any boot thereon permitted bysuch provision) for use in a Permitted Receivables Transaction.Business;(m) the unwinding of any Hedging Obligations;(n) Dispositions in connection with Sale and Lease-Back Transactions permitted bySection 6.01(b)(xxi);(o) Dispositions of Investments in joint ventures to the extent required by, or madepursuant to customary buy/sell arrangements between, the joint venture parties set forth in jointventure arrangements and similar binding arrangements; and(p) any Disposition to the extent not involving property (when taken together withany related Disposition or series of Dispositions) with a fair market value in excess of $25.0million; -106-
Appears in 1 contract
Samples: Incremental Facility Amendment to Credit Agreement (Clean Harbors Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the any Subsidiary to Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition Dispositions permitted by Section 7.04;
(f) Dispositions of assets interests in oil and gas leases, or stock of the Subsidiariesportions thereof (if released or abandoned but not otherwise sold or transferred), so long as no well situated on any such lease, or located on any unit containing all or any part thereof, is capable (with respect or is subject to each such Dispositionbeing made capable through commercially feasible operations) such Disposition is of producing oil, gas or other hydrocarbons or minerals in commercial quantities; and
(g) Dispositions of Oil and Gas Properties that are sold for fair market value and:
consideration to a Person who is not an Affiliate, provided that (i) at least 75the maximum aggregate amount of such sales in the period between two regular Determination Dates is limited to Oil and Gas Properties that account for no more than 10% of the consideration for such Disposition is cash;
Borrowing Base then in effect ("Permitted Property Sales"), (ii) at least 90% of the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for such Permitted Property Sales must be in this Section 8.05(e) that is evidenced by a promissory note cash or other written instrumentcash equivalents; and
(viii) the aggregate book Borrowing Base shall be decreased by the Borrowing Base value attributable to such Oil and Gas Properties (or if greater, the Net Cash Proceeds from such Permitted Property Sale) and, after giving effect to any Permitted Property Sale and to the applicable of the assets proceeds to outstanding Credit Extensions, no Borrowing Base Deficiency shall exist; and (iv) after giving effect to any Permitted Property Sale no Default or assets Event of the PersonDefault shall exist; provided, however, that any Disposition pursuant to clauses (a) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
through (g) shall be for fair market value. No Loan Party will abandon or consent to the abandonment of, any oil or gas well constituting Collateral so long as such Disposition consists well is capable (or is subject to being made capable through drilling, reworking or other operations which it would be commercially feasible to conduct) of producing oil, gas, or other hydrocarbons or other minerals in commercial quantities (as determined without considering the effect of any Mortgage). No Loan Party will elect not to participate in a proposed operation on any oil and gas property constituting Collateral where the effect of such election would be the forfeiture either temporarily (e.g., until a certain sum of money is received out of the sale forfeited interest) or discount permanently of overdue accounts receivable any interest in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionCollateral.
Appears in 1 contract
Samples: Credit Agreement (MV Partners LLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, expired or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets or stock of To the Subsidiariesextent constituting Dispositions, Investments permitted by Section 7.03;
(f) the Borrower and its Restricted Subsidiaries may sell assets, so long as (with respect i) no Event of Default then exists or would result therefrom, (ii) if the Fair Market Value of the assets subject to each such Disposition) any such Disposition is for fair market value and:
in excess of $15,000,000, each such sale is in an arm’s-length transaction and the Borrower or the respective Restricted Subsidiary receives at least Fair Market Value, (iiii) if the Fair Market Value of the assets subject to any such Disposition is in excess of $15,000,000, the consideration received by the Borrower or such Restricted Subsidiary consists of at least 75% cash or Cash Equivalents and is paid at the time of the consideration closing of such sale (provided that the following shall be deemed to be cash under this clause (iii): (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 Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash 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 an amount not to exceed at any time outstanding the greater of $50,000,000 or 1.5% of Consolidated Total Assets (as of the date of such Disposition is cash;
(ii) or, at the Net Cash Proceeds are applied in accordance Borrower’s election, as of the date of entry into a binding agreement with Section 2.06(d);
respect to such Disposition (iii) no Default exists or would exist immediately prior to or after without giving pro forma effect to such Disposition)) (with the Disposition;
amount of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)), (iv) the Net Sale Proceeds therefrom are applied as (and to the extent not otherwise granted therein, the Borrower agrees that it will, extent) required by Section 2.03(b) and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value amount of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of cash and non-cash proceeds received from all assets (or assets of the Person(s)) Disposed of in reliance on sold pursuant to this clause (ef) shall not exceed the greater of $100,000,000 after 180,000,000 and 5.0% of Consolidated Total Assets (as of the Closing Date;
(f) date of such Disposition results from (or, at the Borrower’s election, as of the date of entry into a casualty or condemnation binding agreement with respect to such Disposition (without giving pro forma effect to such Disposition)) in respect any fiscal year of such the Borrower (for this purpose, in each case, using the Fair Market Value of property or assetsother than cash) (provided that any unused amounts under this Section 7.05(f) may be carried over to the immediately succeeding fiscal year);
(g) the Borrower and its Restricted Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such Disposition consists lease or license does not create a Capitalized Lease except to the extent permitted by Section 7.02(i) or (q));
(h) the Borrower and its Restricted Subsidiaries may sell or discount, in each case without recourse (other than customary indemnities in respect of third party liens and claims and customary reductions in purchase price for claims against the Borrower or a Restricted Subsidiary for failure to comply with the terms of the sale or discount of overdue contract under which the accounts receivable or lease receivables arose) and in the ordinary course of business, (i) accounts receivable or lease receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof; orthereof and not as part of any financing transaction, (ii) accounts receivable or lease receivables, interests therein and/or related assets or rights arising in the ordinary course of business so long as such sale or discount is not part of any financing transaction (it being understood, for the avoidance of doubt, that any sale or discount of such accounts receivable or lease receivables without any repurchase obligation shall not constitute a financing transaction) and (iii) letters of credit from customers in order to collect payments in respect of an account receivable or lease receivable earlier than otherwise due in the ordinary course of business and not as part of any financing transaction;
(hi) the Borrower and its Restricted Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons in the ordinary course of business and which do not materially interfere with the conduct of the business of the Borrower or any of its Restricted Subsidiaries, in each case so long as no such Disposition is grant otherwise affects in any material respect the Administrative Agent’s security interest in the asset or property subject thereto (other than in respect of Accounts any Liens permitted hereunder and related assets and is made pursuant to a Permitted Receivables Transaction.thereto);
Appears in 1 contract
Samples: Incremental Joinder and Amendment Agreement (Ciena Corp)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyequipment;
(d) Dispositions of property by the any Borrower or any Restricted Subsidiary to a wholly-owned any other Borrower or to any other Restricted Subsidiary (other than a Receivables Co.) orSubsidiary; provided that, solely with respect after giving effect to Dispositions of the stock of a Restricted Subsidiary of the Borrowersuch Disposition, the Borrower; provided that if the transferor of such property 75% Guarantor Threshold set forth in Section 6.12(b) is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrowersatisfied;
(e) Dispositions of accounts receivable on a non-recourse, non-bulk sale basis in an aggregate amount which, together with Indebtedness incurred pursuant to Section 7.03(f)(ii), shall not exceed at any Disposition time the greater of assets (i) $100,000,000 or stock (ii) twenty percent (20%) of the Subsidiaries, so long as net book value of accounts receivable of WFS and its Restricted Subsidiaries on a consolidated basis at such time;
(with respect to each such Dispositionf) such Disposition is for fair market value Dispositions permitted by Section 7.04; and:
(g) Dispositions not otherwise permitted under this Section 7.05; provided that (i) at least 75% the time of the consideration for such Disposition is cash;
Disposition, no Default shall exist or would result from such Disposition, (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eg) in any fiscal year of WFS shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists 10% of the sale or discount aggregate book value of overdue accounts receivable in tangible assets of WFS and its Restricted Subsidiaries on a consolidated basis as of the ordinary course end of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionWFS’s most recently completed fiscal year.
Appears in 1 contract
Dispositions. 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 its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Company or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that (i) if the transferor of such property is the Borrower or a GuarantorLoan Party, either (x) the transferee thereof must be a Guarantor or, subject Loan Party or (y) the aggregate book value of all assets of the Loan Parties after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith pursuant to the limitation abovedefinition of Non-Core Asset Disposition Related Transactions or Section 7.04(a) that have the effect of transferring assets from Restricted Subsidiaries that are Loan Parties to Restricted Subsidiaries that are non-Loan Parties) constitutes 75% or more of the book value of all assets of the Company and its wholly-owned Restricted Subsidiaries on a consolidated basis as of the end of the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01 and (ii) if the transferor of such property is a Loan Party other than a Foreign Obligor, either (x) the Borrowertransferee thereof must be a Loan Party other than a Foreign Obligor or (y) the aggregate book value of all assets of the Loan Parties after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith pursuant to the definition of Non-Core Asset Disposition Related Transactions or Section 7.04(a) that have the effect of transferring assets from Restricted Subsidiaries that are Loan Parties to Restricted Subsidiaries that are non-Loan Parties) constitutes 75% or more of the book value of all assets of the Company and its wholly-owned Restricted Subsidiaries on a consolidated basis as of the end of the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01;
(e) (i) Dispositions permitted by Section 7.04 (other than Section 7.04(f)) and (ii) Permitted Liens;
(f) Dispositions by the Company and 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;
(h) the sale or other transfer of accounts receivable in connection with the securitization thereof and/or factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Company or any Restricted Subsidiary, within the limits set forth in Section 7.02(f); any disposition of assets of the type specified in the definitions of Securitization Assets or Receivables Assets, or participations therein, including in connection with any Qualified Securitization Financing or Receivables Facility;
(i) so long as no Default shall have occurred and be continuing, or would result therefrom, other Dispositions made after the 2021 Refinancing Amendment Effective Date with an aggregate fair market value for all such Dispositions not to exceed twenty percent (20%) of consolidated total assets of the Company and its Restricted Subsidiaries as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01 (compliance to be measured with respect to any Disposition on the date of such Disposition is made or, at the Company’s election in writing, on the date of the agreement of the Company or any Restricted Subsidiary to make such Disposition)other Dispositions of assets or stock of the Subsidiaries, so long as (with respect to each such Dispositioni) such Disposition is for fair market value and:
(ias determined in good faith by the Company), (ii) no Event of Default has occurred and is continuing or would result therefrom and (iii) at least 75% of the consideration for proceeds of such Disposition is consist of cash or Cash Equivalents; provided that for purposes of this clause (iii), each of the following shall be deemed to be cash;
: (iiw) the Net Cash Proceeds are applied amount of any liabilities (including Indebtedness for borrowed money) (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in accordance with Section 2.06(d);
(iii) no Default exists the notes thereto or would exist immediately prior to if incurred or after giving pro forma effect accrued subsequent to the Disposition;
date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (ivx) the amount of any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days after receipt thereof (to the extent not otherwise granted thereinof the cash received), (y) the Borrower agrees that it will, amount of any Replacement Assets and will cause each (z) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition (in one transaction or a series of related transactions), provided that are Domestic the aggregate amount of Designated Non-Cash Consideration received by the Company and its Restricted Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
all Dispositions after the Amendment No. 14 Effective Date (v) valued and measured, with respect to any item of Designated Non-Cash Consideration, at the aggregate book value time of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (einitial receipt thereof) shall not exceed the greater of (A) $100,000,000 after the Closing Date550,000,000 and (B) 50% of LTM EBITDA;
(fj) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsCash and Cash Equivalents;
(gk) Dispositions of assets within 365 days after the acquisition thereof if such Disposition consists of assets are outside the sale or discount of overdue accounts receivable principal business areas to which the assets acquired, taken as a whole, relate;
(l) in order to collect receivables in the ordinary course of business, but only resolve disputes that occur in the ordinary course of business or engage in transactions with government agencies in the ordinary course of business, Disposition of, discount or otherwise compromise of for less than the face value thereof, notes or accounts receivable, so long as no such Disposition, discount or other compromise gives rise to any Indebtedness, any Lien on any note or account receivable, or is made as part of any accounts receivable securitization programin connection with the compromise any Qualified Securitization Financings or collection thereof; orReceivables Facilities;
(hm) Dispositions of shares of Equity Interests of any of its Subsidiaries in order to qualify members of the board of directors or equivalent governing body of any such Disposition is Subsidiary if required by applicable Law;
(n) Dispositions of Accounts condemned property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and related assets and is made pursuant Dispositions of properties that have been subject to a Permitted Receivables Transaction.casualty to the respective insurer of such property or its designee as part of an insurance settlement;
Appears in 1 contract
Dispositions. Make any Disposition or except the following (provided that each such Disposition shall be for fair market value, determined at the time the agreement to enter into any agreement to make any Disposition, except:such Disposition is made):
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) sales, leases, assignments, transfers or disposals of, in one or any Disposition that constitutes (i) an Investment permitted series of related transactions, any portion of the Borrowing Base Oil and Gas Properties, whether now owned or hereafter acquired, including transfers to Affiliates, which sales, leases, assignments, transfers and disposals under this Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b7.05(b), or in the aggregate, do not exceed $100,000 during any period beginning on the date of Agent’s written notice to Borrower pursuant to Section 2.04 of a Borrowing Base redetermination (iiiexcept that the first such period shall begin on the Closing Date) a Restricted Payment permitted under Section 8.06and ending on the date of the next such written notice from Agent to Borrower;
(c) Dispositions for fair market value sales of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent Hydrocarbons (including through Forward Sales Contracts in the delivery ordinary course of any necessary Mortgage and Mortgaged Property Support Documentsbusiness) on such new or replacement propertyin the ordinary course of business;
(d) Dispositions of property by the any Subsidiary to Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSubsidiary, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrowerprovided that, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be Borrower or a Guarantor or, subject to the limitation above, the Borrower;Guarantor; and
(e) sales, leases, assignments, transfers or disposals of, in one or any Disposition series of related transactions, any portion of assets that are not categorized as Borrowing Base Oil and Gas Properties, whether now owned or stock of the Subsidiarieshereafter acquired, so long as including transfers to Affiliates, which, sales, leases, assignments, transfers and disposals under this Section 7.05(e) for fiscal years ending after December 31, 2009 (i) if any Obligations with respect to each the Term Loan remain outstanding, an aggregate amount of $100,000 during such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
fiscal year and (ii) the Net Cash Proceeds are applied in accordance if no Obligations with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect respect to the Disposition;
(iv) to the extent not otherwise granted thereinTerm Loan remain outstanding, the Borrower agrees that it will, and will cause each an aggregate amount of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to $5,000,000 during such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionfiscal year.
Appears in 1 contract
Dispositions. Make any Disposition or enter into of any agreement to make any Disposition, exceptBorrowing Base Property (other than in connection with the Lease Agreements) unless:
(a) Dispositions the consideration paid in connection therewith shall be in an amount not less than the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part fair market value of the Borrower’s Property disposed of and in cash or Cash Equivalents with such payment to be made contemporaneously with consummation of the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyapplicable transaction;
(b) no later than five (5) Business Days prior to any Disposition that constitutes such Disposition, the Parent shall have delivered to the Administrative Agent (i) an Investment permitted under a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such transaction and any prepayments to be made in connection therewith pursuant to Section 8.022.05, the Loan Parties would be in compliance with the provisions of Article II hereof concerning the Total Revolving Outstandings and Total Facility Outstandings, the covenant set forth in Section 8.02(f) and the financial covenants set forth in and Section 8.11 (regardless of whether Section 8.11 is in effect or the Closing Date Term Loan Facility or Revolving Credit Facility have been Fully Satisfied) as of the most recent calendar quarter end with respect to which the Administrative Agent has received the Required Financial Information and (ii) a Lien permitted under Section 8.01 certificate of a Responsible Officer of the Parent specifying the anticipated date of such Disposition, briefly describing the asset(s) to be sold or Section 8.04(a) otherwise disposed of and setting forth the value of such assets, the aggregate consideration and the Net Cash Proceeds to be received for such assets in connection with such Disposition and certifying that no Default or (b), or (iii) a Restricted Payment permitted under Section 8.06Event of Default then exists;
(c) Dispositions for fair market value of equipment or real property the Loan Parties, to the extent that required by Section 2.05(b), prepay the Loans (iand Cash Collateralize L/C Obligations) in the amount and as of the date required pursuant to such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertysection;
(d) for all Dispositions of property Borrowing Base Properties following (or occurring concurrently with) the initial Disposition of a Borrowing Base Property hereunder, such Disposition has been approved in writing by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerRequired Lenders;
(e) any Disposition of assets or stock of to the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are extent not applied in accordance with Section 2.06(d8.05(c);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each Net Cash Proceeds derived from any such Disposition are applied to Indebtedness or otherwise reinvested in a manner not prohibited hereunder or a binding commitment to so reinvest is entered into within three hundred sixty (360) days following the receipt of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to such Net Cash Proceeds by the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing DateLoan Parties;
(f) immediately following such Disposition results from a casualty or condemnation in respect of Disposition, there shall exist at least two (2) hotel Borrowing Base Properties that continue to fully qualify as such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthe terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory and equipment in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower between or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borroweramong Borrowers;
(e) Dispositions between or among non-Borrower Restricted Subsidiaries and between or among Unrestricted Subsidiaries;
(f) Dispositions of property by any Disposition non-Borrower Subsidiary to any Borrower and Dispositions of assets or stock of the Subsidiariesproperty by any Borrower to any Restricted Subsidiary, so long as (with respect to as, in each such Disposition) case, such Disposition is for fair market complies with the requirements of Section 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, provided that the book value and:of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date;
(i) at least 75% Dispositions in the nature of exclusive licenses of IP Rights not material (determined as of the consideration for such Disposition is cashdate of the applicable license) to the business of the Borrowers and the Restricted Subsidiaries;
(iij) Dispositions by the Net Cash Proceeds Company and its Subsidiaries of accounts receivable arising in the ordinary course of business which are applied overdue or payable by a distressed company in accordance connection with the compromise or collection thereof;
(k) Dispositions of bankruptcy claims of customers of the Company or any 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; provided that after giving effect to such Permitted Acquisition and such related Disposition, the Company or Subsidiary is in compliance with Section 2.06(d7.07 (Change in Nature of Business);
(iiim) Dispositions by Borrowers and their Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default exists shall exist or would exist immediately prior to or after giving pro forma effect to the Disposition;
result from such Disposition and (iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vii) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (em) in any fiscal year shall not exceed $100,000,000 after 5% of Consolidated Net Tangible Assets, measured as of the Closing Date;end of the preceding fiscal year, in any fiscal year of the Company; and
(fn) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable Dispositions in the ordinary course of businessbusiness by the Company and its Subsidiaries of accounts and notes receivable or bankers’ acceptances relating thereto for accounts generated from customers located in China and other jurisdictions in the Pacific Rim region, but only in connection with which dispositions may be made at a discount not to exceed ten percent (10%) of the compromise or collection thereof; or
(h) original face amount of any such Disposition is of Accounts and related assets and is made pursuant account, note receivable to a Permitted Receivables Transactionbankers’ acceptance.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of cash and cash equivalents in the ordinary course of business (including as a result of making any payment required to be made under, or in respect of, retirement plans or other employee benefit plans of the Company and its Subsidiaries and satisfying other monetary obligations of the Company and its Subsidiaries permitted to be incurred and outstanding under this Agreement);
(d) Dispositions of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the SubsidiariesInvestment Transfers described in, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
and permitted by, clauses (i) through (vi) of Section 7.02(d) (but subject to the proviso at least 75% the end of the consideration for such Disposition is cash;
(iiSection 7.02(d)) the Net Cash Proceeds are applied in accordance with or Section 2.06(d7.02(e);
(iiif) no Default exists or would exist immediately prior to or after giving pro forma effect (i) Dispositions of property pursuant to the Disposition;
Specified Sale-Leaseback Transaction and (ivii) Dispositions of property pursuant to other sale-leaseback transactions, provided that (A) each such Disposition shall be made in an arm’s length transaction for fair market value, as determined by the extent not otherwise granted therein, board of directors of the Borrower agrees that it willCompany, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-for 90% cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
and (vB) the aggregate higher of the book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book fair value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (ef)(ii) shall not exceed $100,000,000 after 10,000,000 since the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable leases and licenses in the ordinary course of businessbusiness consistent with past practices, but only in connection with provided such leases and licenses are not for all or substantially all of the compromise Company’s or collection thereof; orsuch Subsidiary’s property;
(h) Dispositions (other than to the Company or any Subsidiary) of real or personal property, including Equity Interests, in arm’s length transactions for fair market value and at least 100% cash consideration, provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) after giving effect to any disposition of Equity Interests, each Subsidiary that is of Accounts and related assets and is a Loan Party shall be a wholly-owned Subsidiary; provided further that the Specified Sale-Leaseback Transaction may only be made pursuant to clause (f) above and not pursuant to this clause (h);
(i) each Scheduled Disposition in arm’s length transaction for fair market value, as determined by the board of directors of the Company, and 100% cash consideration; provided that (i) in the event the board of directors of the Company shall have obtained, in connection with such Scheduled Disposition, a fairness opinion with respect thereto, a copy of such fairness opinion shall have been provided to the Administrative Agent and (ii) following the consummation of such Scheduled Disposition, neither the Company nor any of its Subsidiaries shall Guarantee any obligations under any metals lease, or any other payment obligations, of any Person that shall have ceased to be a Subsidiary as a result of such Scheduled Disposition;
(j) transfers described in, and permitted by, Section 7.02(m); and
(k) [Reserved]. Any Disposition permitted to be made to any Person under clause (e) above (a “Permitted Receivables TransactionTransferee”) may be effected by means of one or more intermediate transfers of assets through Persons who are not Permitted Transferees, provided that such Disposition and all such intermediate transfers occur substantially simultaneously and, after giving effect thereto, the assets disposed of in such Disposition are assets of the Permitted Transferee and not of any such intermediate transferor or transferee.
Appears in 1 contract
Dispositions. Make The Parent will not, and shall cause each Restricted Subsidiary not to, directly or indirectly, make any Disposition or enter into any agreement to make any DispositionDisposition unless such agreement includes an express condition precedent to closing that the Parent or the applicable Restricted Subsidiary shall have obtained all requisite consents under this Agreement, except:
(a) : Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 whether now owned or Section 8.04(a) or (b)hereafter acquired, or (iii) a Restricted Payment permitted under Section 8.06;
(c) in the ordinary course of business; Dispositions for fair market value of inventory in the ordinary course of business; Dispositions of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) ; Dispositions of property by any Guarantor to any other Guarantor or to the Borrower Borrower; [reserved]; Dispositions permitted by Section 8.04; Dispositions of property (other than Equity Interests of a Loan Party) having a Fair Market Value of $15,000,000 or less in any single transaction or series of related transactions; licenses and sub-licenses by the Parent or any Restricted Subsidiary to Subsidiary, in each case on a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or exclusive basis, of patents, trademarks, copyrights and other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such intellectual property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable rights in the ordinary course of business; Dispositions not otherwise permitted under this Section 8.05; provided that: at the time of such Disposition, but only no Default shall exist or would result from such Disposition; the Parent or the applicable Restricted Subsidiary receives consideration at the time of such Disposition at least equal to the Fair Market Value of the property subject to such Disposition; at least 75% of such consideration consists of cash or Cash Equivalents; provided that with respect to this clause (iii): the assumption of Indebtedness of the Parent or a Restricted Subsidiary which is not subordinated to the Obligations shall be deemed to be Cash Equivalents if the Parent, such Restricted Subsidiary and all other Restricted Subsidiaries, to the extent any of the foregoing are liable with respect to such Indebtedness, are expressly released from all liability for such Indebtedness by the holder thereof in connection with such Disposition; any securities or notes received by the compromise Parent or collection thereof; or
(h) such Restricted Subsidiary, as the case may be, from such transferee that are converted by the Parent or such Restricted Subsidiary into cash or Cash Equivalents within 30 days of the date of such Disposition is shall be deemed to be Cash Equivalents; and any Designated Non-Cash Consideration received in respect of Accounts and related assets and is made such Disposition shall have an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to a Permitted Receivables Transaction.this clause (C) that is at that time outstanding, not in excess of $20,000,000, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value; the Net Cash Proceeds of such Disposition are applied and/or reinvested to the extent required by Section 2.05(d); and
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, damaged, destroyed or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02Dispositions of inventory in the ordinary course of business or equipment on or held for lease in the ordinary course of business, (ii) a Lien permitted under Section 8.01 including sales, leases or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06exchanges of such assets;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by to (i) the Borrower Parent or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Domestic Subsidiary of the BorrowerParent and (ii) to any Foreign Subsidiary of the Parent in an aggregate amount, when combined with the Borrower; provided that if the transferor aggregate amount of Investments made pursuant to Section 7.02(c)(ii) during such property is the Borrower or a Guarantorfiscal year, the transferee thereof must be a Guarantor or, subject not to the limitation above, the Borrowerexceed $5,000,000 in any fiscal year;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.04;
(f) such Disposition results from a casualty Dispositions of lease assets in lease securitization, structured finance or condemnation syndication transactions, provided that the Borrower remains in respect compliance with its limitations under the Borrowing Base and all other terms and conditions of such property or assetsthis Agreement;
(g) such Disposition consists 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 $5,000,000 in the aggregate during the term of this Agreement;
(i) the use of cash equivalents in the ordinary course of business in connection with transactions not otherwise prohibited by the Loan Documents;
(j) leases or subleases of property, including real property, in each case in the ordinary course of business not materially interfering with the conduct of the sale business of the Borrower and its Subsidiaries, taken as a whole;
(k) licenses for the use of intellectual property of the Borrower or discount a Subsidiary in the ordinary course of overdue the Borrower’s or such Subsidiary’s business;
(l) Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(hm) such any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(n) to the extent constituting a Disposition, (i) Restricted Payments and (ii) Liens, Investments and fundamental changes permitted by Sections 7.01, 7.02 and 7.04, respectively; and
(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; provided, however, that (i) any Disposition is of Accounts and related assets and is made pursuant to clauses (c), (f) or (g) shall be for fair market value and (ii) if a Permitted Receivables TransactionDisposition involves Pledged Railcars (other than a lease thereof), the Borrower shall, if required by Section 6.02(a), deliver an updated Borrowing Base Certificate and shall comply with Section 2.06.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of 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) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or (ii) a Responsible Officer of Holdings shall have delivered a certificate to the Applicable Administrative Agent prior to the date of such Disposition stating that Holdings or any Subsidiary of Holdings intends to reinvest the proceeds of such Disposition are reasonably promptly applied in replacement property of Holdings and its Subsidiaries within 365 days of receipt of such proceeds (provided that if, prior to the purchase price expiration of such replacement equipment 365 day period, Holdings, directly or real propertythrough a Subsidiary, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx have entered into a binding agreement providing for such investment on or prior to the Administrative Agent date that is 180 days after the expiration of such 365 day period, such 365 day period shall be extended to the date provided for such investment in such binding agreement); provided that if such investment is not made as contemplated by this clause (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on ii), then such new or replacement propertyDisposition shall not be deemed to have been made in accordance with this clause (ii);
(di) Dispositions of property by any Borrower of a Group to any Guarantor of the same Group, or by any Subsidiary of a Group to any Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions Guarantor of the stock of same Group or by any Subsidiary that is not a Restricted Loan Party to any Subsidiary of the Borrower, the Borrowerthat is not a Loan Party; provided that if the transferor of such property is the a Borrower or a Guarantor, the transferee thereof must either be a Borrower of the same Group or a Guarantor or, subject of the same Group and (ii) the issuance by ACCO Canadian Subsidiary (or its successor-in-interest by a permitted amalgamation) of up to $35,000,000 liquidation value of preferred stock having terms and conditions reasonably satisfactory to the limitation above, Administrative Agent to Holdings and the Borrowersubsequent redemption thereof by ACCO Canadian Subsidiary (or its successor-in-interest by a permitted amalgamation) for a cash redemption amount not exceeding the cash proceeds received by ACCO Canadian Subsidiary from (or its successor-in-interest by a permitted amalgamation) the issuance of such preferred stock;
(e) any Disposition Dispositions of assets or stock accounts receivable for purposes of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datecollection;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable investment securities and Cash Equivalents in the ordinary course of business;
(g) (A) Dispositions permitted by Section 7.04, but only in connection with the compromise or collection thereof; or(B) Dispositions that constitute Investments permitted by Section 7.02, and (C) Dispositions that constitute Restricted Payments permitted by Section 7.06;
(h) licensing or sublicensing of IP Rights in the ordinary course of business for fair market value and on customary terms; provided that the grant of any exclusive license shall not materially interfere with, or preclude, the exploitation by Holdings or any of its Subsidiaries of any IP Rights to the extent that such IP Rights continue to be used in the business;
(i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(j) Dispositions by Holdings and its Subsidiaries of property not otherwise permitted under this Section 7.05 (but in any event excluding Receivables Program Assets); 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 in the aggregate from the Closing Date are less than the greater of (x) $100,000,000 and (y) 3.50% of Consolidated Total Assets of Holdings, (iii) the consideration received for such property shall be in an amount at least equal to the fair market value thereof, (iv) no less than 75% of such consideration shall be paid in cash (provided that Dispositions in an aggregate amount not to exceed $25,000,000 shall be exempt from such minimum cash requirements) and (v) the Net Cash Proceeds thereof shall be applied as required by Section 2.05(b)(i); provided, however, that for the purposes of clause (iv), the following shall be deemed to be cash: (A) any liabilities (as shown on Holdings’ or the applicable Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings or such Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of its Subsidiaries shall have been validly released by all applicable creditors in writing and (B) any securities received by Holdings or the applicable Subsidiary from such transferee that are converted by Holdings or such 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;
(k) Dispositions by Holdings and its Subsidiaries of property acquired after the Closing Date in Permitted Acquisitions; provided that (i) Holdings identifies any such assets to be divested in reasonable detail in writing to the Applicable Administrative Agent on or before the closing date of such Permitted Acquisition, (ii) the fair market value of the assets to be divested in connection with any Permitted Acquisition does not exceed an amount equal to fifteen percent (15%) of the total cash and non-cash consideration for such Permitted Acquisition and (iii) the Net Cash Proceeds thereof shall be applied as required by Section 2.05(b)(i); and
(l) Dispositions of Receivables Program Assets in connection with a Qualified Receivable Transaction; provided that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (ii) no less than 85% of such consideration shall be paid in cash, (iii) the Net Cash Proceeds thereof shall be applied as required by Section 2.05(b)(i), (iv) the fair market value of such disposed assets shall not exceed the greater of $50,000,000 and 2.00% of Consolidated Total Assets of Holdings, (v) the Seller’s Retained Interest and all proceeds thereof shall constitute Collateral (to the extent such interest is required to be Collateral hereunder) and all necessary steps to perfect a Lien in such Seller’s Retained Interest for the benefit of the Secured Parties have been taken by Holdings and its Subsidiaries and (vi) no Event of Default shall have occurred and be continuing at the time such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionmade.
Appears in 1 contract
Samples: Credit Agreement (Acco Brands Corp)
Dispositions. (a) Make any Disposition or enter into any agreement to make any Disposition, exceptother than as set forth in subsection (c), unless:
(a1) Dispositions in Holdings or such Restricted Subsidiary receives consideration at least equal to the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value (such fair market value to be determined in good faith by Holdings on the date of equipment or real property contractually agreeing to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) of the equity and assets subject to such Disposition is for fair market value Disposition; and:
(i2) at least 75% of the consideration for received by Holdings or such Disposition Restricted Subsidiary is cashin the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”).
(b) For the purposes of this Section 7.05, the following are deemed to be Cash Consideration:
(1) any liabilities (as reflected on the Consolidated Group’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Consolidated Group’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings or such Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets;
(ii2) the Net Cash Proceeds any securities, notes or other obligations received by Holdings or any Restricted Subsidiary from such transferee that are applied in accordance with Section 2.06(d);
(iii) no Default exists converted by Holdings or would exist immediately prior to such Restricted Subsidiary into cash or cash equivalents within 180 days after giving pro forma effect to the such Disposition;
(iv) , to the extent not otherwise granted therein, of the Borrower agrees cash and cash equivalents received in that it will, and will cause each conversion; and
(3) any Designated Non-cash Consideration received by Holdings or any of its Restricted Subsidiaries that are Domestic Subsidiaries toin such Disposition having an aggregate fair market value, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with all other Designated Non-cash Consideration received pursuant to this clause that has at that time not been converted into cash or a cash equivalent, not to exceed the aggregate book greater of $100.0 million and 5.0% of Consolidated Net Tangible Assets (with the fair market value of all each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(c) JHT may not make any Disposition of any Intellectual Property unless the Disposition:
(1) is of obsolete assets (no longer required or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateuseful for its business;
(f2) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable is in the ordinary course of business, but only ; provided that such Dispositions in connection with the compromise or collection thereofaggregate do not exceed 10% of the fair market value of its Intellectual Property in any fiscal year; or
(h3) such Disposition is occurs with the prior consent of Accounts and related assets and is made pursuant the Required Lenders. For the avoidance of doubt, nothing in this clause 7.05(c) restricts or prohibits any distribution by JHT of cash or inter-company receivables to a Permitted Receivables Transactionshareholder of JHT through dividends or the making of subordinated loans.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (James Hardie Industries PLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
: (a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
; (b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbe abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
; (c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement property;
property is actually promptly purchased); (d) Dispositions of property by to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor orLoan Party, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted thereinsuch transaction constitutes an Investment, the Borrower agrees that it willsuch transaction is permitted under Section 7.02, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a or (iii) such Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value shall consist of the assets (transfer of Equity Interests in or assets Indebtedness of the Person) subject any Foreign Subsidiary to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause any other Foreign Subsidiary; (e) shall not exceed $100,000,000 after the Closing Date;
Dispositions permitted (other than by reference to this Section 7.05(e)) by Section 7.04 and Section 7.06 and Liens permitted by Section 7.01; (f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assets;
Cash Equivalents; (g) such Disposition consists 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 sale Borrower and its Restricted Subsidiaries, taken as a whole; (h) transfers of property subject to Casualty Events; (i) Dispositions of Investments in JV Entities or discount non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of overdue such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary; (j) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or
(hk) such Disposition is the unwinding of Accounts and related assets and is made any Swap Contract pursuant to a Permitted Receivables Transaction.its terms; 142
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Parent Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbe abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by to the Parent Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor orLoan Party, subject (ii) to the limitation aboveextent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the Borrowertransfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted (with respect other than by reference to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s7.05(e)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateby Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsCash Equivalents;
(g) such Disposition consists 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 sale Parent Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or discount non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of overdue such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or;
(hk) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) so long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Parent Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $60,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Parent Borrower at the time of such Disposition, the Parent Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Parent Borrower or any of its Restricted Subsidiaries and the valid release of the Parent Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Parent Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Parent Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of Accounts such Disposition, to the extent that the Parent Borrower and related each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Parent Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Parent Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $150,000,000 and (y) 25.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Parent Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $45,000,000 and (y) 7.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) the Parent Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and leases and settle or waive contractual or litigation claims in the ordinary course of business;
(p) Dispositions of assets (including Equity Interests) acquired in connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(q) any swap of assets (other than of ABL Priority Collateral with Fixed Assets Priority Collateral) in exchange for services or other assets of comparable or greater fair market value useful to the business of the Parent Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Parent Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) [reserved];
(t) Dispositions conducted in connection with any Reorganization;
(u) [reserved];
(v) Dispositions conducted in connection with a REIT Conversion Transaction for so long as the Borrower (or its applicable parent entity) is made pursuing a REIT Election in good faith and the REIT Conversion Transaction Requirement has been satisfied; and
(w) any Disposition by the Parent Borrower or a Restricted Subsidiary of the Equity Interests of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Permitted Receivables TransactionReorganization. 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 Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Parent Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Abl Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Dispositions. Make No Borrower shall make any Disposition or enter into any agreement to make any Disposition, Disposition except:
(a) Dispositions of Personal Property, whether now owned or hereafter acquired, in the ordinary course of its business (for fair consideration and neither constitutes on an arm’s-length basis, provided that if such property was required under any Loan Document to be subject to a Disposition first priority Lien in favor of all Administrative Agent, such property shall be replaced by an item of equal or greater value which is subject to a substantial part first-priority Lien in favor of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyAdministrative Agent;
(b) any Disposition that constitutes (i) an Investment Dispositions permitted under by Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.068.9;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent Properties (including any leasehold interest (or subleasehold interest, as the delivery of case may be, created under any necessary Mortgage and Mortgaged Property Support DocumentsGround Lease or Operating Lease)), so long as such Collateral Properties (or leasehold or subleasehold interests) on are released pursuant to Section 2.10 prior to or contemporaneously with such new or replacement property;Disposition; and
(d) Dispositions The Disposition in lieu of property condemnation by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions Owner of the stock of a Restricted Subsidiary Sheraton Burlington Property, in favor of the BorrowerCity of South Burlington, of that certain strip of land which is between eleven (11) and sixteen (16) feet in width running along Williston Road (the Borrower“Sheraton Burlington Condemnation Parcel”); provided that if the transferor of such property is the Borrower or a Guarantorprovided, the transferee thereof must be a Guarantor orhowever, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:that
(i) at least 75% Borrowers deliver to Administrative Agent evidence that would be reasonably acceptable to a prudent lender that the release of the consideration for such Disposition is cashBurlington Condemnation Parcel will not adversely affect (other than to a de minimis extent) the economic value of, or the revenue produced by the Sheraton Burlington Property;
(ii) As of date of the Net Cash Proceeds are applied in accordance with Section 2.06(d)release, no Event of Default has occurred which is continuing and no Event of Default would result from the proposed release;
(iii) no Default exists Borrowers deliver to Administrative Agent evidence which would be satisfactory to a prudent lender that (A) the Sheraton Burlington Condemnation Parcel has been or would exist immediately prior to or after giving pro forma effect concurrently with the release will be legally subdivided from the remainder of the Sheraton Burlington Property (to the Dispositionextent required by applicable Law), and (B) the Sheraton Burlington Condemnation Parcel (together with any appurtenant easements or other rights with respect to adjacent property) is not necessary for the related Sheraton Burlington Property to comply with any zoning, building, land use or parking or other similar Legal Requirements with respect to the related Sheraton Burlington Property or for the then current use of the Sheraton Burlington Condemnation Property, including without limitation for access, driveways, parking, utilities or drainage or, to the extent that the Sheraton Burlington Condemnation Parcel is necessary for any such purpose, a reciprocal easement agreement or other agreement has been executed and recorded that would allow the owner of the Sheraton Burlington Property to continue to use the Sheraton Burlington Condemnation Parcel to the extent necessary for such purpose, which reciprocal easement agreement shall be superior to the related Security Instrument;
(iv) If requested by Administrative Agent, Borrowers shall deliver to Administrative Agent an endorsement to the extent not otherwise granted thereinapplicable Title Insurance Policy insuring the applicable Mortgage, which endorsement (i) extends the Borrower agrees that it will, and will cause each effective date of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant such Title Insurance Policy to the effective date of the release, (ii) confirms no change in the priority of the Mortgage on the balance of the Sheraton Burlington Property (exclusive of the Sheraton Burlington Condemnation Parcel); and (iii) insures the rights and benefits under any new or amended reciprocal easement agreement or such other agreement required pursuant to subclause (iii) above that has been executed and recorded, if any;
(v) Administrative Agent receives evidence in the form of a security interest certificate executed by a Responsible Officer of the Owner of the Sheraton Burlington Property that the Owner of the Sheraton Burlington Property has complied with any requirements applicable to the reciprocal easement agreements, Operating Lease, parking agreements or other similar agreements affecting the related Sheraton Burlington Property and that the release does not violate any of the provisions of such documents in any non-cash consideration received respect and that any such release of the Sheraton Burlington Condemnation Parcel shall not result in connection with any right in favor of a Disposition provided for third party of offset, abatement or reduction of rent payable to any Borrower or any right in this Section 8.05(e) that is evidenced by favor of a promissory note third party of termination, cancellation or surrender under any Leases, reciprocal easement agreements or other written instrumentmaterial agreement by which any Borrower or the Sheraton Burlington Property is bound or encumbered;
(vi) Borrowers pay all of Administrative Agent’s reasonable out-of-pocket expenses relating to the release of the Sheraton Burlington Condemnation Parcel; and
(vvii) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together Borrower shall simultaneously with the aggregate book value release of all assets Sheraton Burlington Condemnation Parcel transfer title to the Sheraton Burlington Condemnation Parcel to the City of South Burlington; provided, further, that any Disposition pursuant to clauses (or assets of the Person(sa)) Disposed of in reliance on this clause , (eb), and (c) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionbe for fair market value.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions as permitted or required under any other provision of this Agreement;
(b) licenses and sales of distribution or exploitation rights in Covered Products pursuant to Distribution Agreements, agreements with Licensing Intermediaries or Approved Co-Financing Agreements in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06business;
(c) Dispositions for fair market value any Disposition pursuant to an Approved Co-Financing Agreement;
(d) any Disposition of equipment or real property other property, to the extent that (i) such equipment property is used, obsolete, worn out or real surplus, (ii) such property is exchanged for credit against the purchase price of similar replacement property or (iiiii) the proceeds of such Disposition thereof are reasonably promptly applied to the purchase price of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(de) Dispositions without recourse of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable solely for the purpose of collection thereof in the ordinary course of business;
(f) Dispositions of cash and Cash Equivalents not in violation of the terms hereunder;
(g) Dispositions of Qualifying Tax Receivables and other tax deductions, but only in connection with rebates, credits and/or refunds so long as the compromise or collection thereof; ortransactions relating thereto are on terms (including an acceptable present-valued rate of return on the assets being transferred) and pursuant to documentation reasonably satisfactory to the Administrative Agent;
(h) such as permitted under Section 7.22;
(i) any Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionCompletion Bond or the corresponding completion agreement in favor of the relevant Completion Guarantor; and
(j) pursuant to Liens permitted by Section 7.01.
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (World Wrestling Entertainmentinc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerwholly‑owned Subsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value exclusive licenses of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable IP Rights in the ordinary course of business, but only in connection business and substantially consistent with the compromise or collection thereofpast practice for terms not exceeding five years; orand
(hf) without duplication of any other provision contained in this Section 7.05, so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, on a pro forma basis, after giving effect thereto, at the time of any such Dispositions, other Dispositions up to (i) in any year, an amount equal to ten percent (10%) of the value of the Borrower’s Consolidated Tangible Assets (determined at the time of making such Disposition is with reference to the Consolidated Tangible Assets as of Accounts and related assets and is made the end of the most recent completed fiscal year for which financial statements have been delivered pursuant to a Permitted Receivables TransactionSection 6.01(a)), and (ii) during the term hereof, an aggregate amount equal to twenty‑five percent (25%) of the value of the Borrower’s Consolidated Tangible Assets (determined at the time of making such Disposition with reference to the Consolidated Tangible Assets as of the end of the most recent completed fiscal year for which financial statements have been delivered pursuant to Section 6.01(a)).
Appears in 1 contract
Dispositions. Make (a) No Loan Party shall, nor shall it permit any Disposition Restricted Subsidiary to, directly or enter into any agreement to indirectly, make any Disposition, exceptother than as set forth in subsection (c), unless:
(a1) Dispositions in Holdings or such Restricted Subsidiary receives consideration at least equal to the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value (such fair market value to be determined in good faith by Holdings on the date of equipment or real property contractually agreeing to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) of the assets subject to such Disposition is for fair market value Disposition; and:
(i2) at least 75% of the consideration for received by Holdings or such Disposition Restricted Subsidiary is cash;in the form of cash or cash equivalents, Additional Assets or any combination thereof (collectively, the “Cash Consideration”).
(iib) For the Net purposes of this Section 7.05, the following are deemed to be Cash Proceeds Consideration:
(1) any liabilities (as reflected on the Consolidated Group’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Consolidated Group’s consolidated balance sheet or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings or such Restricted Subsidiary (other than contingent liabilities) that are applied assumed by the transferee of any such assets (or are otherwise extinguished in accordance connection with Section 2.06(dthe transactions relating to such Disposition);
(iii2) no Default exists any securities, notes or would exist immediately prior to other obligations received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or cash equivalents within 180 days after giving pro forma effect to the such Disposition;
(iv) , to the extent not otherwise granted therein, of the Borrower agrees cash and cash equivalents received in that it will, and will cause each conversion; and
(3) any Designated Non-cash Consideration received by Holdings or any of its Restricted Subsidiaries that are Domestic Subsidiaries toin such Disposition having an aggregate fair market value, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with all other Designated Non-cash Consideration received pursuant to this clause that has at that time not been converted into cash or a cash equivalent, not to exceed the aggregate book greater of $100.0 million and 5.0% of Consolidated Net Tangible Assets (with the fair market value of all each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(c) JHT may not make any Disposition of any Intellectual Property unless the Disposition:
(1) is of obsolete assets (no longer required or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateuseful for its business;
(f2) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable is in the ordinary course of business, but only ; provided that such Dispositions in connection with the compromise or collection thereofaggregate do not exceed 10% of the fair market value of its Intellectual Property in any fiscal year; or
(h3) such Disposition is occurs with the prior consent of Accounts and related assets and is made pursuant the Required Lenders. For the avoidance of doubt, nothing in this clause 7.05(c) restricts or prohibits any distribution by JHT of cash or inter-company receivables to a Permitted Receivables Transactionshareholder of JHT through dividends or the making of subordinated loans.
Appears in 1 contract
Samples: 364 Day Term Loan and Guaranty Agreement (James Hardie Industries PLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyTransfers;
(b) Dispositions of other assets for fair market value (as determined by the Borrower in good faith) in an aggregate amount not to exceed $5,000,000 per fiscal year; provided, that (i) at least 75% of the consideration paid in connection therewith shall be cash or Cash Equivalents (provided that for purposes hereof cash consideration shall include (v) cash and Cash Equivalents paid contemporaneously with the consummation of the Disposition, (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to Holdings or a Restricted Subsidiary) of Holdings or any applicable Restricted Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which Holdings and its Restricted Subsidiaries shall have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by Holdings or any Restricted Subsidiary from such transferee that are converted by such Person into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) 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 subclause (z) that is at that time outstanding, not in excess of the greater of $2,000,000 and 2% of Consolidated EBITDA for the then most recently ended Applicable Period shall be deemed to be Cash); (ii) such transaction does not involve the sale or other disposition of a minority Equity Interest in any Loan Party (other than Holdings) and (iii) the Net Cash Proceeds of such Disposition are applied (to the extent required) to prepay the Loans as set forth in Section 2.5(b)(ii);
(c) any Disposition that constitutes (i) an Investment permitted under Section 8.027.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b)7.01, or (iii) a Restricted Payment merger, dissolution, consolidation or liquidation permitted under Section 8.06;
7.04 (cother than Section 7.04(c)) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or (iiiv) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, a Sale and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyLeaseback Transaction permitted by Section 7.15 ;
(d) Dispositions the sale or Disposition of property Equity Interests to qualify directors where required by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrowerapplicable law;
(e) any Disposition Dispositions of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received Swap Contracts in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note the termination or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateunwinding thereof;
(f) such Disposition results from a casualty Dispositions of Equity Interests or condemnation in respect Indebtedness of such property or assets;Unrestricted Subsidiaries; and
(g) such Disposition consists of other Dispositions involving assets having a fair market value (as determined by the sale or discount of overdue accounts receivable Borrower in good faith at the ordinary course of business, but only in connection with time the compromise or collection thereof; or
(h) definitive agreement for such Disposition is entered into) in the aggregate of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionnot more than $2,500,000 during the term of this Agreement.
Appears in 1 contract
Dispositions. Make any Disposition (1) Within 3 Business Days of the date of receipt (or enter into any agreement to make any Disposition, except:
if an Activation Instruction (a) Dispositions as defined in the ordinary course Guaranty and Security Agreement) is in effect concurrently with receipt) by Borrower or any of its business (and neither constitutes a Disposition of all or a substantial part Subsidiaries of the Borrower’s Net Cash Proceeds of any voluntary or involuntary sale or disposition by Borrower or any of its Subsidiaries of any Accounts or Equipment (including casualty losses or condemnations) in excess of $1,000,000 in the aggregate (calculated as an amount equal to the lesser of (x) 100% of the Net Cash Proceeds (including condemnation awards and the Restricted Subsidiaries’ assets, taken as a whole, nor is made payments in lieu thereof) received by such Person in connection with a Permitted Receivables Transactionsuch sales or dispositions, or (y) 100% of the Net Orderly Liquidation Value of such Accounts and/or Equipment at such time identified in the most recent appraisal ordered and obtained by Agent subject to such sale or disposition) for all such sales and dispositions of obsolete Accounts and/or Equipment after the Fourth Amendment Effective Date, Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to the lesser of (x) 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or worn out property;dispositions, or (y) 100% of the Net Orderly Liquidation Value of such Accounts and/or Equipment at such time identified in the most recent appraisal ordered and obtained by Agent subject to such sale or disposition; and
(b2) Within 3 Business Days of the date of receipt (or if an Activation Instruction (as defined in the Guaranty and Security Agreement) is in effect concurrently with receipt) by Borrower or any Disposition that constitutes of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary sale or disposition by Borrower or any of its Subsidiaries of assets other than Accounts or Equipment (i) an Investment permitted including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or clauses (b), (c), (d), (e), (j), (k), (l), (m), or (iiin) a Restricted Payment permitted under of the definition of Permitted Dispositions), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 8.06;
(c2.4(f)(ii) Dispositions for fair market value of equipment or real property in an amount equal to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds 100% of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent Net Cash Proceeds (including the delivery of any necessary Mortgage condemnation awards and Mortgaged Property Support Documentspayments in lieu thereof) on received by such new Person in connection with such sales or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrowerdispositions; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the Subsidiariesthat, so long as (with respect A) no Default or Event of Default shall have occurred and is continuing or would result therefrom, (B) Borrower shall have given Agent prior written notice of Borrower's intention to each apply such Disposition) such Disposition is for fair market value and:
(i) at least 75% monies to the costs of replacement of the consideration for properties or assets that are the subject of such Disposition is cash;
sale or disposition or the cost of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries, (iiC) the Net Cash Proceeds monies are held in a Deposit Account in which Agent has a perfected first-priority security interest, and (D) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, then the Loan Party whose assets were the subject of such disposition shall have the option to apply such monies to the costs of replacement of the assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of such Loan Party unless and to the extent that such applicable period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining in the Deposit Account referred to in clause (C) above shall be paid to Agent and applied in accordance with Section 2.06(d2.4(f)(ii);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for . Nothing contained in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e2.4(e)(ii) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty permit Borrower or condemnation any of its Subsidiaries to sell or otherwise dispose of any assets other than in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection accordance with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionSection 6.4.
Appears in 1 contract
Samples: Credit Agreement (Nuverra Environmental Solutions, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbe abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor orLoan Party, subject (ii) to the limitation aboveextent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the Borrowertransfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted (with respect other than by reference to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s7.05(e)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateby Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsCash Equivalents;
(g) such Disposition consists 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 sale Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or discount non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of overdue such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or;
(hk) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) so long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $60,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of Accounts such Disposition, to the extent that the Borrower and related each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $150,000,000 and (y) 25.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $45,000,000 and (y) 7.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) the Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and leases and settle or waive contractual or litigation claims in the ordinary course of business;
(p) Dispositions of assets (including Equity Interests) acquired in connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(q) any swap of assets in exchange for services or other assets of comparable or greater fair market value useful to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) Dispositions of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(t) Dispositions conducted in connection with any Reorganization;
(u) [reserved];
(v) Dispositions conducted in connection with a REIT Conversion Transaction for so long as the Borrower (or its applicable parent entity) is made pursuing a REIT Election in good faith and the REIT Conversion Transaction Requirement has been satisfied; and
(w) any Disposition by the Borrower or a Restricted Subsidiary of the Equity Interests of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Permitted Receivables TransactionReorganization. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing. Notwithstanding the foregoing, in no event shall the Borrower or any Restricted Subsidiary Dispose of any Material Intellectual Property to any Unrestricted Subsidiary unless such Disposition is in connection with transition services agreements or non-exclusive licenses, in each case, in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Dispositions. Make The Borrower shall not, nor shall it permit any Subsidiary nor the LS&Co. Trust to, directly or indirectly make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, including any property no longer used in the business;
(b) any Disposition that constitutes Dispositions of inventory (i) an Investment permitted under Section 8.02, in the ordinary course of business or (ii) a Lien permitted under Section 8.01 by the Borrower or Section 8.04(a) any of its Subsidiaries to the Borrower or (b), or (iii) a Restricted Payment permitted under Section 8.06any of its Subsidiaries in arms length transactions in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property accounts receivable to collection agencies provided the extent that (i) aggregate face amount of all such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyaccounts receivable does not exceed $5,000,000;
(d) Dispositions of property by accounts receivable of any Foreign Subsidiary and a foreign branch of any Domestic Subsidiary, provided the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions aggregate face amount of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of all such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borroweraccounts receivable does not exceed $25,000,000;
(e) Dispositions permitted by Section 7.04; ------------
(f) Dispositions of real property pursuant to Real Estate Financing Transactions permitted under Section 7.03(c)(vii) provided the Borrower and its -------------------- Subsidiaries make the prepayments required pursuant to Section 2.05(b); ---------------
(g) Licenses of IP Rights in the ordinary course of business;
(h) Transfers and contributions of funds from time to time (i) by the Borrower to that certain grantor trust adopted and maintained by the Borrower in connection with the deferred compensation plan adopted by the Borrower to be effective as of January 2003 (the "LS&Co. Deferred Compensation ------ --------------------- Plan") for the purpose of contributing funds to be held until paid to ---- participants in the LS&Co. Deferred Compensation Plan and their beneficiaries (together with any Disposition successors, the "LS&Co. Trust") pursuant to those certain ------------ trust agreements in form and substance satisfactory to the Administrative Agent (the "LS&Co. Trust Agreement") and (ii) by the LS&Co. Trust to plan participants ---------------------- or the Borrower in accordance with the LS&Co. Trust Agreement;
(i) Dispositions of assets or stock Foreign Receivables pursuant to Permitted Foreign Receivables Transactions permitted under Section 7.03(c)(vi) provided ------------------- the Borrower and its Subsidiaries make the prepayments required pursuant to Section 2.05(b); ---------------
(j) Dispositions of equipment pursuant to Equipment Financing Transactions permitted under Section 7.03(c)(viii) provided the SubsidiariesBorrower and its --------------------- Subsidiaries make the prepayments required pursuant to Section 2.05(b); ---------------
(k) Dispositions of Domestic Receivables pursuant to Permitted Domestic Receivables Transactions permitted under Section 7.03(c)(x) provided ------------------ the Borrower and its Subsidiaries make the prepayments required pursuant to Section 2.05(b); ---------------
(l) that the sum, so long as without duplication, of (with respect to each such Dispositioni) such Disposition is for the fair market value and:of such property sold, transferred, licensed or otherwise disposed of after the date hereof plus ---- (ii) the aggregate principal amount of Indebtedness permitted by Section ------- 7.03(c)(xiv) plus (iii) the aggregate Investments permitted by Section 7.02(l) ------------ ---- --------------- shall not exceed $50,000,000 in the aggregate during Fiscal Year 2003, or $100,000,000 in the aggregate during Fiscal Years 2003 and 2004, taken as a single period, or $150,000,000 in the aggregate during Fiscal Years 2003, 2004 and 2005, taken as a single period, or $175,000,000 in the aggregate during Fiscal Years 2003, 2004, 2005 and 2006, taken as a single period;
(m) other Dispositions by the Borrower and its Subsidiaries of property other than accounts receivable; provided that (i) at the time of any -------- Disposition, no Event of Default shall exist or shall result from such disposition; (ii) the consideration received for such Disposition shall be in an amount at least equal to the fair market value of the assets sold, transferred, licensed or otherwise disposed of; (iii) at least 75% of the consideration received for such Disposition is disposition shall be cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
; (iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received for all such Dispositions in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrumentthe aggregate shall not exceed $30,000,000 at any time outstanding; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book fair market value of all assets (so sold, transferred, licensed or assets otherwise disposed of by the Person(s)) Disposed of in reliance on this clause (e) Borrower and its Subsidiaries shall not exceed $100,000,000 after 50,000,000 in any Fiscal Year; and (vi) the Closing DateBorrower and its Subsidiaries make the prepayments required pursuant to Section ------- 2.05(b); -------
(n) Dispositions for no more than fair market value of property, including Equity Interests, (i) of any Guarantor to the Borrower or another Guarantor; (ii) of any Pledged Domestic Subsidiary to the Borrower, any Guarantor or another Pledged Domestic Subsidiary; (iii) of any Pledged Foreign Subsidiary to the Borrower, any Guarantor, any Pledged Domestic Subsidiary or another Pledged Foreign Subsidiary; and (iv) of any Unpledged Foreign Subsidiary to the Borrower or any of its other Subsidiaries;
(fo) such Disposition results from a casualty Dispositions constituting leases or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable subleases granted to others in the ordinary course of business, but only in connection business not interfering with the compromise or collection ordinary conduct of the business of the grantor thereof; or;
(hp) Dispositions involving the liquidation of any Foreign Subsidiary or a foreign branch of any Domestic Subsidiary for the purpose of converting the Borrower's business in such Disposition is of Accounts foreign region into licensee operations; provided -------- that the Borrower and related assets and is made its Subsidiaries make the prepayments required pursuant to Section 2.05(b); ---------------
(q) Dispositions of accounts receivable from the Borrower to LSFCC; and
(r) a Permitted Receivables Transaction.Disposition of the promissory note permitted pursuant to Section 7.02(q). ---------------
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or to any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, Borrower or by any Subsidiary of the Borrower; provided that if the transferor of such property is Borrower to the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, Subsidiary of the Borrower;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.02;
(f) such Disposition results from a casualty Dispositions of accounts receivable in connection with the compromise or condemnation collection thereof in respect the ordinary course of such property or assetsbusiness and not as part of any accounts receivables financing transaction;
(g) such Disposition consists of leases, subleases and licenses entered into by the sale Borrower or discount of overdue accounts receivable any Subsidiary as a lessor, sublessor or licensor in the ordinary course of business, but only provided that such leases, subleases or licenses do not interfere in connection any material respect with the compromise ordinary conduct of business of the Borrower or collection thereof; orany Subsidiary;
(h) such Disposition is Dispositions of Accounts Investments (including Equity Interests) in, and related assets and is issuances of Equity Interests by, any joint venture or Subsidiary to the extent required by, or made pursuant to a Permitted Receivables Transactioncustomary buy/sell arrangements between the parties to such joint venture or equityholders of such Subsidiary set forth in, the joint venture agreement, operating agreement, shareholders agreement or similar agreement governing such joint venture or Subsidiary; and
(i) Dispositions by the Borrower and its Subsidiaries of property pursuant to sale-leaseback transactions and other Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.09; provided that at the time of such Disposition, no Event of Default shall have occurred and be continuing at the time of such Disposition or would result therefrom.
Appears in 1 contract
Samples: Term Loan Agreement (Vontier Corp)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyequipment;
(d) Dispositions of property by the any Borrower or any Restricted Subsidiary to a wholly-owned any other Borrower or to any other Restricted Subsidiary (other than a Receivables Co.) orSubsidiary; provided that, solely with respect after giving effect to Dispositions of the stock of a Restricted Subsidiary of the Borrowersuch Disposition, the Borrower; provided that if the transferor of such property 70% Guaranty Threshold set forth in Section 6.12(b) is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrowersatisfied;
(e) Dispositions of accounts receivable on a non-recourse, non-bulk sale basis in an aggregate amount which, together with Indebtedness incurred pursuant to Section 7.03(f)(ii), shall not exceed at any Disposition time the greater of assets (i) $100,000,000 or stock (ii) twenty-five percent (25%) of the Subsidiaries, so long as net book value of accounts receivable of WFS and its Restricted Subsidiaries on a consolidated basis at such time;
(f) Dispositions permitted by Section 7.04;
(g) Dispositions of credit card receivables to one or more payment service providers in connection with respect commercial agreements pursuant to each which WFS or a Restricted Subsidiary is entitled to receive all or substantially all of the proceeds of the receivables transferred pursuant to such DispositionDispositions; and
(h) such Disposition is for fair market value and:
Dispositions not otherwise permitted under this Section 7.05; provided that (i) at least 75% the time of the consideration for such Disposition is cash;
Disposition, no Default shall exist or would result from such Disposition, (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eh) in any fiscal year of WFS shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists 10% of the sale or discount aggregate book value of overdue accounts receivable in tangible assets of WFS and its Restricted Subsidiaries on a consolidated basis as of the ordinary course end of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables TransactionWFS’s most recently completed fiscal year.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or surplus assets (including dormant manufacturing facilities) that are no longer used or usable in the business of the Company and its Restricted Subsidiaries;
(b) Dispositions of inventory in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;; CHAR1\1718846v5
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Company or to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orWholly Owned Subsidiary; provided, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrowerthat, the Borrower; provided that if the transferor of such property is the Borrower or a GuarantorLoan Party, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerLoan Party;
(e) Dispositions permitted by Sections 7.04 or 7.06 (in each case, other than by reference to this Section 7.05 (or any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(dsub-clause hereof));
(iiif) no Default exists Dispositions of property or would exist immediately prior to or assets in an aggregate amount in any fiscal year that, when combined with all other Dispositions previously made under this Section 7.05(f) during such fiscal year (and after giving pro forma effect to such proposed Disposition), do not exceed twelve and one-half percent (12.5%) of the Disposition;
(iv) to Total Consolidated Assets of the extent not otherwise granted therein, the Borrower agrees that it will, Company and will cause each of its Restricted Subsidiaries that as of the end of the immediately preceding fiscal year for which financial statements are Domestic Subsidiaries to, grant required to be delivered to the Administrative Agent a security interest and the Lenders pursuant to Section 6.01, or for the 2020 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 nonfiscal year shall at a later time exceed twelve and one-cash consideration received in connection with a half percent (12.5%) of the Total Consolidated Assets of the Company and its Restricted Subsidiaries so long as at the time of each such Disposition provided for in (and immediately after giving pro forma effect thereto) each such Disposition was permitted to be made under this Section 8.05(e7.05(f)); provided, that, to the extent the proceeds of any Disposition made under this Section 7.05(f) that are reinvested within the same fiscal year in which such Disposition is evidenced made in assets used or usable in a business permitted by Section 7.07 as certified in writing by a promissory note Responsible Officer to the Administrative Agent (which such writing shall indicate the date and amount of such reinvestment and the assets or other written instrument; and
(v) 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 book value amount of Dispositions permitted under this Section 7.05(f); provided, further, that, the assets (or assets amount of the Person) subject to such Disposition, when taken together any Disposition for purposes of compliance with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (eSection 7.05(f) shall not exceed $100,000,000 after be the Closing Date;
(f) such Disposition results from a casualty or condemnation fair market value as determined by the Company in respect of such property or assetsgood faith;
(g) such Disposition consists the Company or any Restricted Subsidiary may write-off, discount, sell or otherwise Dispose of the sale defaulted or discount of overdue accounts receivable past due receivables and similar obligations in the ordinary course of business, but only in connection with the compromise or collection thereof; orbusiness and not as part of an accounts receivable financing transaction;
(h) such Disposition is to the extent constituting a Disposition, (i) issuances of Accounts Equity Interests in the ordinary course of business and related assets and is made (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 the aggregate, in any material respect with the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole;
(l) leases, subleases, licenses or sublicenses of real or personal property granted by the Company or any of its Restricted Subsidiaries to others in the ordinary course of business not CHAR1\1718846v5 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 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 TransactionFinancing in accordance with the terms thereof;
(q) Dispositions of assets pursuant to Tax Incentive Programs; and
(r) Dispositions of assets previously disclosed in reasonable detail to the Administrative Agent and the Lenders in writing at least three (3) Business Days prior to the Effective Date; provided, that, any Disposition made between a Loan Party and a Subsidiary of the Company that is not a Loan Party shall be for fair market value (determined in good faith by the Company at the time of such Disposition).
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of the Parent Borrower and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbe abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by to the Parent Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor orLoan Party, subject (ii) to the limitation aboveextent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the Borrowertransfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) any Disposition of assets or stock of the Subsidiaries, so long as Dispositions permitted (with respect other than by reference to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s7.05(e)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Dateby Section 7.04 and Section 7.06 and Liens permitted by Section 7.01;
(f) such Disposition results from a casualty or condemnation in respect Dispositions of such property or assetsCash Equivalents;
(g) such Disposition consists 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 sale Parent Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or discount non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of overdue such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business, but only business in connection with the collection or compromise or collection thereof; or;
(hk) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) so long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Parent Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $60,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Parent Borrower at the time of such Disposition, the Parent Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Parent Borrower or any of its Restricted Subsidiaries and the valid release of the Parent Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Parent Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Parent Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of Accounts such Disposition, to the extent that the Parent Borrower and related each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Parent Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Parent Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $150,000,000 and (y) 25.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Parent Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $45,000,000 and (y) 7.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) the Parent Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and leases and settle or waive contractual or litigation claims in the ordinary course of business;
(p) Dispositions of assets (including Equity Interests) acquired in connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(q) any swap of assets (other than of ABL Priority Collateral with Fixed Assets Priority Collateral) in exchange for services or other assets of comparable or greater fair market value useful to the business of the Parent Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Parent Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) [reserved];
(t) Dispositions conducted in connection with any Reorganization;
(u) [reserved];
(v) Dispositions conducted in connection with a REIT Conversion Transaction for so long as the Borrower (or its applicable parent entity) is made pursuing a REIT Election in good faith and the REIT Conversion Transaction Requirement has been satisfied; and
(w) any Disposition by the Parent Borrower or a Restricted Subsidiary of the Equity Interests of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Permitted Receivables TransactionReorganization. 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 Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Parent Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing. Notwithstanding the foregoing, in no event shall the Borrower or any Restricted Subsidiary Dispose of any Material Intellectual Property to any Unrestricted Subsidiary unless such Disposition is in connection with transition services agreements or non-exclusive licenses, in each case, in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) (x) Permitted Transfers and (y) Dispositions set forth on Schedule 8.05 of the Disclosure Letter;
(b) the Disposition of trading stock, inventory and goods held for sale, in each case in the ordinary course of business;
(c) the Disposition of defaulted receivables in the ordinary course of business (and not as part of a Permitted Receivables Financing);
(d) the Disposition of used, obsolete, damaged, worn-out or surplus equipment, or property no longer useful in the conduct of the business or otherwise economically impracticable to maintain, whether now owned or hereafter acquired;
(e) 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;
(f) Dispositions among the Parent and/or any Restricted Subsidiary; provided that any such Disposition by a Loan Party to a Person that is a Non-Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents at the time of such Disposition; provided, further, that for purposes of this clause (f), each of the following shall be deemed cash: (a) the amount of any liabilities (as shown on the Parent’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Parent or such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 365 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Parent or any of its Restricted Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $25,000,000 and 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period immediately prior to 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);
(g) the Disposition of Cash or Cash Equivalents pursuant to a transaction that is not otherwise prohibited by this Agreement;
(h) the lease or sub-lease of any real or personal property and the termination or non-renewal of any real property lease not used or not necessary to the operations of the Parent or any Restricted Subsidiary;
(i) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part other Dispositions consisting of the Borrower’s abandonment of intellectual property rights of the Parent or any of Restricted Subsidiary which, in the reasonable good faith determination of the management of the Parent, are no longer useful or necessary in the operation of the business of the Parent and the its Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(bj) any Disposition that constitutes (i) an Investment permitted under Section to the extent constituting a Disposition, the creation of Liens, the making of Investments, the consummation of fundamental changes and the making of Restricted Payments not prohibited by Sections 8.01, 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b)8.04 and 8.06, or (iii) a Restricted Payment permitted under Section 8.06respectively;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or (iik) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the Borrower;
(e) any Disposition of assets or stock of the SubsidiariesImmaterial Subsidiary, so long as (i) the fair market value of such Immaterial Subsidiary’s assets shall not exceed $10,000,000 as of the date of such Disposition and (ii) the aggregate fair market value of all Immaterial Subsidiaries’ assets disposed of pursuant to this clause (k) shall not exceed $25,000,000;
(l) to the extent constituting a Disposition, the unwinding of any Swap Contract pursuant to its terms;
(m) the Disposition of “non-core” assets or property acquired pursuant to a Permitted Acquisition or Permitted Investment, so long as the consideration paid in connection therewith shall be in an amount not less than the fair market value of the property disposed of (as reasonably determined by the Borrower);
(n) the Disposition of assets in connection with the approval of or clearance by any applicable antitrust authority or other regulatory authority in connection with (x) the Target Acquisition (whether before, concurrent or subsequent to consummation of the Target Acquisition) or (y) any other Permitted Acquisition (whether before, concurrent or subsequent to consummation of such Permitted Acquisition), so long as, in the case of clause (y), (i) the consideration paid in connection therewith shall be in an amount not less than the fair market value of the property disposed of (as reasonably determined by the Borrower), and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents at the time of such Disposition; provided, that for purposes of this clause (n), each of the following shall be deemed cash: (a) the amount of any liabilities (as shown on the Parent’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Parent or such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 365 days of the receipt thereof (to the extent of the cash received), and (c) any Designated Non-Cash Consideration received by the Parent or any of its Restricted Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $25,000,000 and 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period immediately prior to 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);
(o) exchanges or swaps, including transactions covered by Section 1031 of the Internal Revenue Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute Excluded Property, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the real property so exchanged or swapped;
(p) Dispositions of assets that do not constitute Collateral for fair market value; and
(q) other Dispositions so long as (i) with respect to each such Disposition) such Disposition is for fair market value and:
(i) Dispositions in excess of $10,000,000, at least 75% of the consideration for such Disposition is cash;
consists of cash or Cash Equivalents and (ii) the Net consideration paid in connection therewith shall be in an amount not less than the fair market value of the property disposed of (as reasonably determined in good faith by the Borrower); provided, that for purposes of this clause (q), each of the following shall be deemed cash: (a) the amount of any liabilities (as shown on the Parent’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Parent or such Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash within 365 days of the receipt thereof (to the extent of the cash received), and (c) any Designated Non-Cash Proceeds are applied Consideration received by the Parent or any of its Restricted Subsidiaries in accordance such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with Section 2.06(dall other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $25,000,000 and 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period immediately prior to 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);
(iiir) no Default exists Dispositions contemplated by or would exist immediately prior necessary to or after giving pro forma effect to accomplish the DispositionPost-Closing Reorganization;
(ivs) to the extent not otherwise granted therein, the Borrower agrees that it will, Sale and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any nonLease-cash consideration received in connection with a Disposition provided for in this Back Transactions permitted by Section 8.05(e) that is evidenced by a promissory note or other written instrument8.14; and
(vt) the aggregate book value transfer of the assets (improvements, additions or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only alterations in connection with the compromise or collection thereof; or
(h) such Disposition lease of any property. The Administrative Agent is hereby instructed by the Lenders and hereby agrees with the Loan Parties that the Administrative Agent shall release its Liens on any property Disposed of Accounts in accordance with the terms of this Section 8.05 and related assets and is made pursuant to a Permitted Receivables TransactionSection 11.20.
Appears in 1 contract
Samples: Credit Agreement (Coherent Inc)
Dispositions. Make Dispose of any Disposition of the Borrowing Base Properties, whether now owned or enter into any agreement to make any Dispositionhereafter acquired, except:
(a) Dispositions of Hydrocarbons in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06farmouts of undeveloped acreage and assignments in connection with such farmouts;
(c) Dispositions for fair market value the Disposition of equipment or real and other property to in the extent that (i) such equipment or real property is exchanged for credit against the purchase price ordinary course of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real propertybusiness, and in each case if that is obsolete or no longer necessary in the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery business of any necessary Mortgage of the Credit Parties or that is being replaced by equipment of comparable value and Mortgaged Property Support Documents) on such new or replacement propertyutility;
(d) Dispositions of property Liens permitted by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) orSection 8.2, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerInvestments permitted by Section 8.6 and Distributions permitted by Section 8.5;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date8.3;
(f) such Disposition results from a casualty or condemnation Dispositions of cash and Cash Equivalents in respect the ordinary course of such property or assetsbusiness;
(g) such Disposition consists Borrower may Dispose of the sale its Borrowing Base Properties to any Restricted Subsidiary and any Restricted Subsidiary may Dispose of its Borrowing Base Properties to Borrower or discount any other Restricted Subsidiary;
(h) sales or discounts of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(hi) Dispositions of owned or leased vehicles in the ordinary course of business;
(j) Dispositions consisting of any compulsory pooling or unitization ordered by a Governmental Authority with jurisdiction over the subject Oil and Gas Properties;
(k) other Dispositions of Borrowing Base Properties, provided that: (i) unless such Disposition is a farmout, unitization, or exchange (or an assignment in connection therewith), 90% of Accounts and related assets and is made the consideration received in respect of such Disposition shall be cash, (ii) the consideration received in respect of such Disposition shall be equal to or greater than the fair market value of the Borrowing Base Property or interest therein, (iii) if such Disposition of Borrowing Base Properties (or the Equity Interests of any Restricted Subsidiary owning Borrowing Base Properties) during any period between two successive scheduled redeterminations has a fair market value in excess of five percent (5%) of the Borrowing Base then in effect (as reasonably determined by the Administrative Agent), individually or in the aggregate for all such Borrowing Base Properties, the Borrowing Base shall be reduced, effective immediately upon such Disposition, by an amount equal to the value, if any, assigned such Borrowing Base Properties in the most recently delivered Reserve Report, (iv) after giving effect to any reduction in the Borrowing Base pursuant to clause (iii) above, Borrower shall use the Net Cash Proceeds received from such Disposition to reduce the Aggregate Credit Exposure pursuant to and in accordance with the terms of Section 2.10(c) and (v) immediately before and after giving effect thereto, no Default shall have occurred and been continuing; and MRC Energy Company Credit Agreement 104
(l) other Dispositions of Borrowing Base Properties having a Permitted Receivables Transactionfair market value not to exceed $10 million in any fiscal year.; and
(m) Dispositions of Oil and Gas Properties to which no proved oil and gas reserves are attributed and which are not included in or not given value for purposes of establishing the Borrowing Base and that would not otherwise constitute Borrowing Base Properties.
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds Net Cash Proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerSubsidiary;
(e) any Disposition of assets Dispositions permitted by Section 7.04;
(f) Dispositions by the Borrower or stock a Subsidiary that satisfy each of the Subsidiaries, so long as following conditions and which shall not be deemed to be a Disposition under this clause (with respect to each such Dispositionf) such Disposition is for fair market value anduntil all of the following conditions have been satisfied:
(i) at least 75% the Borrower shall have delivered a written notice to the Administrative Agent contemporaneously with the consummation of the consideration for Disposition in which the Borrower:
(A) identifies the property that is the subject of the Disposition,
(B) states the nature and terms of the transaction and the nature and use of the proceeds of the transaction, and
(C) states that, within three hundred and sixty-five (365) days following the consummation of such Disposition, the entire proceeds of such Disposition is cash;(or portion thereof which has not been allocated by the Borrower to clause (g) below), net of reasonable and ordinary transaction costs and expenses incurred in connection with such Disposition and any Indebtedness required by its terms to be repaid in connection with such Disposition, shall be applied to the acquisition by the Borrower or any Subsidiary of operating assets or Equity Interests of a Person which will become a Subsidiary and which owns operating assets and which operating assets will be used in the ordinary course of business of the Borrower and its Subsidiaries, and
(ii) the Net Cash Proceeds are proceeds of such Disposition shall have been applied as described in accordance with Section 2.06(d)such written notice;
(iiig) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default exists shall exist or would exist immediately prior to or after giving pro forma effect to the Disposition;
result from such Disposition and (iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(vii) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (eg) shall not exceed $100,000,000 after 25% of Consolidated Tangible Net Worth as of the Closing Date;
; provided, however, that any Disposition pursuant to clauses (fa) such Disposition results from a casualty or condemnation in respect of such property or assets;
through (g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionshall be for fair market value.
Appears in 1 contract
Dispositions. Make Dispose of (whether in one or a series of transactions) any Disposition property or assets (or enter into any agreement to make any Dispositiondo the same), except:
(a) Dispositions of used, obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a the abandonment or other Disposition of all or a substantial part intellectual property that is, in the reasonable judgment of the Borrower’s Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Parent and the Restricted its Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) subject to Section 7.07, Dispositions of property by any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) Borrower or any Significant Subsidiary to any Borrower or to a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06wholly owned Subsidiary of any Borrower;
(c) Dispositions for fair market value of equipment permitted by Section 7.02, 7.04 or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property7.06;
(d) Dispositions the unwinding of property by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerSwap Contract;
(e) any Disposition leases of assets or stock property, including real property, in each case in the ordinary course of business not materially interfering with the conduct of the business of the Parent and its Subsidiaries, so long taken as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Datewhole;
(f) licenses for the use of intellectual property or other intangible assets; provided that, (i) in the case of any such Disposition results from a casualty or condemnation license granted on an non-exclusive basis, such license will be in respect the ordinary course of such licensor’s business, and (ii) in the case of any such license granted on an exclusive basis, such licensor has determined in its reasonable business judgment that such intellectual property or assetsother intangible assets are not likely to be otherwise monetized by the Borrowers and Significant Subsidiaries in the ordinary course of their respective businesses;
(g) such Disposition consists Dispositions of the sale or discount of overdue accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(h) Dispositions of Cash and Cash Equivalents in the ordinary course of business and Dispositions in respect of any Bank Products;
(i) Dispositions of assets for cash or other property if all of the following conditions are met: (i) such Disposition assets (valued at book value) do not constitute a “substantial part” (as defined below) of the assets of the Parent and its Subsidiaries taken as a whole; and (ii) with respect to such disposition of assets that in the aggregate, exceed $100,000,000 (valued at book value), a Responsible Officer of the applicable transferor will certify to Administrative Agent that: (A) the sale is for reasonably equivalent value, (B) is in the best interests of Accounts such transferor and related (C) immediately after the consummation of the transaction and after giving effect thereto, no Default or Event of Default would exist. For purposes of this Section 7.05(i), a sale of assets will be deemed to involve a “substantial part” of the assets of the Parent and is made its Subsidiaries taken as a whole if the book value of such assets, together with all other assets sold in reliance upon this Section 7.05
(i) during the same Fiscal Year (except those assets sold pursuant to clauses (a) through (h) of this Section 7.05), equals 10.00% or more of the Consolidated total assets of the Parent and its Subsidiaries taken as a whole determined as of the end of the immediately preceding Fiscal Year; and
(j) Eligible Receivables sold in any Permitted Receivable Financing; provided that the face amount of Program Receivables proposed to be sold plus the aggregate face amount of Eligible Receivables previously sold in all other Permitted Receivables TransactionFinancings made since the Closing Date may not exceed 5% of Eligible Receivables determined as of the last day of the Fiscal Period most recently ended before such proposed sale for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b).
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete, worn out, or no longer needed property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes Dispositions of inventory (iincluding hydrocarbons) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 of such replacement equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertyequipment;
(d) Dispositions of property by the any Subsidiary to Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date8.04;
(f) such Disposition results from a casualty or condemnation in respect Sales of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable hydrocarbons in the ordinary course of business, but only ;
(g) Dispositions consisting of any compulsory pooling or unitization ordered by a Governmental Authority with jurisdiction over each Loan Party's Mineral Interests in connection with the compromise or collection thereof; orits oil and gas properties;
(h) Dispositions in connection with farm-outs participation or other similar agreements in the ordinary course of business of undeveloped acreage or undrilled depths and assignments in connection therewith;
(i) Asset Dispositions; provided that (1) all of the consideration received in respect to such Asset Disposition is shall be cash, (2) the consideration received shall be equal to or greater than the fair market value thereof (as reasonably determined by the board of Accounts managers of Borrower and related assets if requested by Administrative Agent, Borrower shall deliver a certificate of a Responsible Officer of Borrower certifying to that effect), (3) if the aggregate value of Asset Dispositions between scheduled redeterminations exceeds 5% of the then-existing Borrowing Base, (A) Borrower shall have given Administrative Agent prior written notice of such Asset Dispositions and is made (B) the Borrowing Base shall be reduced pursuant to a Permitted Receivables Transaction.Section 4.05(c) effective immediately upon such Asset Disposition, by an amount equal to the Recognized Value of the assets included in such Asset Disposition, as determined by Administrative Agent, in the then current Borrowing Base, and (4) the Administrative Agent, Required Lenders, Swap Lenders and Third Party Counterparties shall have approved such Asset Disposition prior to the consummation of such Asset Disposition if the aggregate value of Asset Dispositions between scheduled redeterminations exceeds 10% of the then-existing Borrowing Base;
Appears in 1 contract
Dispositions. Make any Disposition or enter into any agreement to make any DispositionDisposition (except to the extent such agreement to make such Disposition is subject to the satisfaction in full of all the Obligations or subject to obtaining the prior written consent of the Administrative Agent and the Required Lenders), except:
(a) Dispositions of obsolete, excess, damaged, no longer useful or worn out property, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02Dispositions that do not constitute Asset Sales, and (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of overdue accounts receivable in the ordinary course of business and consistent with the past practices of the business of the Borrower;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or another Subsidiary that is a Guarantor orGuarantor;
(d) Dispositions of Investments permitted by Section 7.02 (other than Section 7.02(f)), subject to the limitation above, the BorrowerDispositions permitted by Section 7.04 and Dispositions constituting Liens permitted by Section 7.01;
(e) any Disposition Dispositions by the Borrower and its Subsidiaries of assets or stock property pursuant to sale and leaseback transactions, provided that the lesser of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for book value and fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property so Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date2,500,000;
(f) such Disposition results from a casualty or condemnation the Retail Facilities Disposition; provided that the Net Cash Proceeds received in respect of such property or assetsRevolver Priority Collateral shall be applied to repay outstanding Loans and interest thereon in accordance with Section 2.09(b)(vi);
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; orNon-Core Dispositions;
(h) such transactions contemplated by the applicable Restructuring Documentation;
(i) any condemnation or eminent domain proceeding affecting any real property; and
(j) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) (i) are less than $5,000,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset Sales made during the term of this Agreement, are less than $10,000,000; provided that the Net Cash Proceeds thereof shall be applied as (and to the extent) required hereunder and/or as and to the extent required under the Replacement Term Loan Facility; provided, however, that any Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthe foregoing clauses shall be for at least fair market value and any Disposition pursuant to clauses (f), (g) and (j) shall be for at least 75% cash consideration payable at the closing of such Disposition.
Appears in 1 contract
Samples: Revolving Credit Agreement (Keystone Automotive Operations Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions or abandonment of obsolete, worn out or surplus property, (including, without limitation, Intellectual Property), whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition Dispositions of all property no longer used or a substantial part useful in the conduct of the Borrower’s business of Holdings, the Borrowers and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) Dispositions or discounts of inventory and Dispositions of immaterial assets in the ordinary course of business (including allowing any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 registrations or Section 8.04(a) any applications for registration of any immaterial IP Rights to lapse or (bbecome abandoned in the ordinary course of business), or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or which replacement propertyproperty is actually promptly purchased);
(d) Dispositions of property by to Holdings, the Borrower Borrowers or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerSubsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, Loan Party (i) the transferee thereof must be a Guarantor or, subject Loan Party or (ii) to the limitation aboveextent such transaction constitutes an Investment, such transaction is permitted under Section 7.02; provided, further, that (A) if the property being disposed of is transferred to a Subsidiary that is not a Loan Party, the BorrowerAdministrative Agent may require, in the exercise of its reasonable business judgment, that the transferee execute an agreement granting the Administrative Agent access to such property for purposes of conducting a Liquidation, and (B) if the property being disposed of constitutes Eligible Accounts or Eligible Inventory and is being transferred to a Subsidiary which is not a Loan Party, such disposition shall be made only if the Specified Conditions are satisfied after giving effect thereto;
(e) any Disposition Dispositions permitted by Sections 7.02, 7.04 and 7.06 and Liens permitted by Section 7.01;
(f) Dispositions in the ordinary course of assets business of Cash Equivalents;
(g) leases, subleases, licenses or stock sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of Holdings, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events upon receipt of the Subsidiaries, so long as (with respect to each Net Cash Proceeds of such Disposition) such Disposition is for fair market value and:Casualty Event;
(i) Dispositions of property (other than Inventory and Accounts that are subject to the Borrowing Base) not otherwise permitted under this Section 7.05; provided that (i) at least 75% the time of the consideration for such Disposition is cash;
(other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition, (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) property Disposed of in reliance on this clause (ei) shall not exceed $100,000,000 after 80,000,000 per calendar year (with unused amounts in any calendar year being carried over to the Closing Date;
succeeding calendar years); provided that such amount may, at the option of the Lead Borrower, be increased by an amount up to $40,000,000 (fwhich such amount shall reduce the annual amount for the subsequent calendar year), and (iii) with respect to any Disposition pursuant to this clause (i) for a purchase price in excess of $5,000,000, Holdings, the Borrowers or a Restricted Subsidiary shall receive not less than 75.00% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), Section 7.01(b), Section 7.01(m) and clauses (i) and (ii) of Section 7.01(v)); provided, however, that for the purposes of this clause (iii), (A) Holdings, the Lead Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing from any liabilities (as shown on Holdings, such Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Senior Credit Obligations, that are assumed by the transferee with respect to the applicable Disposition, (B) any securities received by such Borrower or such Restricted Subsidiary from such transferee that are converted by such Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition results from a casualty or condemnation and (C) any Designated Non-Cash Consideration received in respect of such property or assetsDisposition 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 1.00% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(gj) such Disposition consists Dispositions of Investments in joint ventures to the sale extent required by, or discount made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of overdue accounts receivable or notes receivable in the ordinary course of business, but only business in connection with the collection or compromise thereof or collection thereof; orthe conversion of accounts receivable to notes receivable;
(hl) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(m) the unwinding of any Swap Contract pursuant to its terms; provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Section 7.05(e) and (m) and except for Dispositions from a Loan Party to another Loan Party or from a Non-Loan Party to another Non-Loan Party or from a Non-Loan Party to a Loan Party), shall be for no less than the fair market value of such property at the time of such Disposition and, in the case of Accounts and Inventory, solely for cash consideration. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or any Restricted Subsidiary, such Collateral (but not the proceeds thereof) shall be sold free and clear of the Liens created by the Loan Documents, and, if requested of the Administrative Agent, upon the certification by the Lead Borrower that such Disposition is of Accounts and related assets and is made pursuant permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to a Permitted Receivables Transactiontake any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Ahny-Iv LLC)
Dispositions. Make any Disposition or enter into of any agreement Borrowing Base Property (other than (x) the Disposition of a Borrowing Base Property pursuant to make any Disposition, excepta Permitted PILOT Transaction and (y) in connection with the Lease Agreements) unless:
(a) Dispositions the consideration paid in connection therewith shall be in an amount not less than the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part fair market value of the Borrower’s Property disposed of and in cash or Cash Equivalents with such payment to be made contemporaneously with consummation of the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertyapplicable transaction;
(b) no later than five (5) Business Days prior to any Disposition that constitutes such Disposition, the Parent shall have delivered to the Administrative Agent (i) an Investment permitted under a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such transaction and any prepayments to be made in connection therewith pursuant to Section 8.022.05, the Loan Parties would be in compliance with the provisions of Article II hereof concerning the Total Revolving Outstandings and Total Facility Outstandings, the covenant set forth in Section 8.02(f) and the financial covenants set forth in and Section 8.11 as of the most recent calendar quarter end with respect to which the Administrative Agent has received the Required Financial Information and (ii) a Lien permitted under Section 8.01 certificate of a Responsible Officer of the Parent specifying the anticipated date of such Disposition, briefly describing the asset(s) to be sold or Section 8.04(a) otherwise disposed of and setting forth the value of such assets, the aggregate consideration and the Net Cash Proceeds to be received for such assets in connection with such Disposition and certifying that no Default or (b), or (iii) a Restricted Payment permitted under Section 8.06Event of Default then exists;
(c) Dispositions for fair market value of equipment or real property the Loan Parties, to the extent that required by Section 2.05(b), prepay the Loans (iand Cash Collateralize L/C Obligations) in the amount and as of the date required pursuant to such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement propertysection;
(d) for all Dispositions of property Borrowing Base Properties following (or occurring concurrently with) the initial Disposition of a Borrowing Base Property hereunder, such Disposition has been approved in writing by the Borrower or any Restricted Subsidiary to a wholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject to the limitation above, the BorrowerRequired Lenders;
(e) any Disposition of assets or stock of to the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are extent not applied in accordance with Section 2.06(d8.05(c);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each Net Cash Proceeds derived from any such Disposition are applied to Indebtedness or otherwise reinvested in a manner not prohibited hereunder or a binding commitment to so reinvest is entered into within three hundred sixty (360) days following the receipt of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to such Net Cash Proceeds by the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing DateLoan Parties;
(f) immediately following such Disposition results from a casualty or condemnation in respect of Disposition, there shall exist at least two (2) hotel Borrowing Base Properties that continue to fully qualify as such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionthe terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ryman Hospitality Properties, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of excess, obsolete or worn out property, or property that, in the reasonable business judgment of the Borrower is no longer useful or economically practicable to maintain in the conduct of the business of the Borrower and its Subsidiaries taken as a whole, whether now owned or hereafter acquired, in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out propertybusiness;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b), or (iii) a Restricted Payment permitted under Section 8.06Dispositions of inventory in the ordinary course of business;
(c) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or any Restricted Subsidiary to a whollyWholly-owned Restricted Subsidiary (other than a Receivables Co.) or, solely with respect to Dispositions of the stock of a Restricted Subsidiary of the Borrower, the BorrowerOwned Subsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or, subject to the limitation above, the BorrowerGuarantor;
(e) any Disposition of assets or stock of the Subsidiaries, so long as (with respect to each such Disposition) such Disposition is for fair market value and:
(i) at least 75% of the consideration for such Disposition is cash;
(ii) the Net Cash Proceeds are applied in accordance with Dispositions permitted by Section 2.06(d);
(iii) no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date7.04;
(f) licenses of IP Rights so long as any such Disposition results from license, individually or in the aggregate with all such licenses, does not materially impair the business of the Borrower and its Subsidiaries taken as a casualty or condemnation in respect of such property or assetswhole as currently conducted;
(g) such Disposition consists leases of the sale real or discount of overdue accounts receivable personal property in the ordinary course of business, but only in connection with the compromise or collection thereof; or;
(h) Dispositions of (A) Equity Interests of Immaterial Subsidiaries or Foreign Subsidiaries and (B) business units of the Borrower or any Subsidiary; provided that the fair market value of the assets subject to any Disposition under this paragraph (h) shall not, taken together with the aggregate fair market value of all assets Disposed of during the term of this Agreement pursuant to this paragraph (h), as determined at the time each such Asset was so Disposed of, exceed an amount equal to 10% of the consolidated total assets of the Borrower and its Subsidiaries as of the last day of the most recent fiscal quarter in respect of which financial statements have been delivered pursuant to Section 6.01; provided, further, that any Disposition permitted by this paragraph (h) at the time consummated shall be deemed permitted at all times thereafter even if subsequent to the date such Disposition was consummated the amount of consolidated total assets of the Borrower and its Subsidiaries has decreased;
(i) Dispositions of accounts receivable and other rights to payment for collection purposes in the ordinary course of business;
(j) Dispositions of property by any Subsidiary that is not a Loan Party to any Loan Party or any another Subsidiary that is not a Loan Party;
(k) Dispositions during fiscal year 2007 of Accounts assets that are not essential to the core business of the Borrower and related its Subsidiaries as of the date hereof; provided, that the Consolidated EBITDA attributable to such assets and is made in the aggregate for the most recent four quarters for which financial statements are available does not exceed $2,000,000;
(l) other Dispositions in an aggregate amount not to exceed $5,000,000 in any calendar year; provided, however, that any Disposition pursuant to a Permitted Receivables Transactionclauses (a), (b), (c), (f), (g), (h) and (i) shall be for fair market value.
Appears in 1 contract
Samples: Credit Agreement (Neustar Inc)
Dispositions. Make any Disposition (a) Cause, make or enter into any agreement suffer to make any Dispositionexist an Asset Sale, exceptunless:
(a) Dispositions in the ordinary course of its business (and neither constitutes a Disposition of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’ assets, taken as a whole, nor is made in connection with a Permitted Receivables Transaction) or of obsolete or worn out property;
(b) any Disposition that constitutes (i) an Investment permitted under Section 8.02the Borrower or such Restricted Subsidiary, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or (b)as the case may be, or (iii) a Restricted Payment permitted under Section 8.06;
(c) Dispositions for receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Borrower) of equipment the assets sold or real property to otherwise disposed of (notwithstanding the extent that (i) such equipment or real property is exchanged for credit against foregoing, 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 equipment or real property, and in each case if the disposed property constituted Collateral then the relevant Loan Party shall xxxxx x Xxxx to the Administrative Agent (including the delivery of any necessary Mortgage and Mortgaged Property Support Documents) on such new or replacement property;
(d) Dispositions of property consideration received by the Borrower or any of its Restricted Subsidiary to a wholly-owned Restricted Subsidiary (Subsidiaries from sales, transfers and other than a Receivables Co.) or, solely with respect to Dispositions dispositions of the stock of a Restricted Subsidiary of the Borrower, the Borrower; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must be a Guarantor or, subject Investments in other joint ventures to the limitation aboveextent required by, or made pursuant to, customary buy/sell arrangements between the Borrower;
(e) any Disposition of assets or stock of the Subsidiariesjoint venture parties set forth in joint venture agreements and similar binding agreements, so long as (with respect shall, in each case, be deemed to each such Disposition) such Disposition is for be fair market value for purposes of this Section 7.05(a)(i); and:
(iii) except in the case of a Permitted Asset Swap, at least 7580% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (such 80% of consideration, the “Minimum Cash Consideration”) ; provided that the amount of
(A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Term Loans, that are assumed by the transferee of any such assets (or a third party on behalf of the transferee) or are otherwise extinguished by the transferee in connection with such Asset Sale and for which the Borrower or such Disposition is Restricted Subsidiary has been validly released by all creditors in writing,
(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 (to the extent of the cash received) or Cash Equivalents within 180 days following the closing of such Asset Sale and
(C) any Designated Noncash Consideration received by the Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that has not previously been converted to cash;
, not to exceed the greater of (x) $100,000,000 and (y) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, in each case, shall be deemed to be cash or Cash Equivalents for purposes of this clause (ii) the Net Cash Proceeds are applied in accordance with Section 2.06(d);
(iii) and for no Default exists or would exist immediately prior to or after giving pro forma effect to the Disposition;
(iv) to the extent not otherwise granted therein, the Borrower agrees that it will, and will cause each of its Restricted Subsidiaries that are Domestic Subsidiaries to, grant to the Administrative Agent a security interest in any non-cash consideration received in connection with a Disposition provided for in this Section 8.05(e) that is evidenced by a promissory note or other written instrument; and
(v) the aggregate book value of the assets (or assets of the Person) subject to such Disposition, when taken together with the aggregate book value of all assets (or assets of the Person(s)) Disposed of in reliance on this clause (e) shall not exceed $100,000,000 after the Closing Date;
(f) such Disposition results from a casualty or condemnation in respect of such property or assets;
(g) such Disposition consists of the sale or discount of overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof; or
(h) such Disposition is of Accounts and related assets and is made pursuant to a Permitted Receivables Transactionpurpose.
Appears in 1 contract
