Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, except: (a) the Disposition of obsolete or worn out property in the ordinary course of business; (b) the sale of inventory in the ordinary course of business; (c) Dispositions permitted by Sections 6.03(c) and (d); (d) any Recovery Event, provided, that the requirements of Section 2.11(c) are complied with in connection therewith; (e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction; (f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c); (g) Permitted Sale-Leaseback Transactions permitted by Section 6.10; (h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c); (i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and (j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 3 contracts
Samples: Credit Agreement (LKQ Corp), Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete obsolete, uneconomical or worn out property or property that is damaged, worn out or no longer useful or used in such Person’s business, in each case in the ordinary course of business (including the abandonment or termination of leasehold interests in the ordinary course of business) and any other Disposition in the ordinary course of business involving consideration less than $1,000,000;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and Section 7.4(b), (dc)(ii), or (d)(ii);
(d) the sale of the Borrower’s treasury stock and the sale or issuance of any Recovery Event, provided, that Restricted Subsidiary’s Capital Stock to the requirements of Section 2.11(c) are complied with in connection therewithBorrower or any Subsidiary Guarantor;
(e) each the Disposition of any assets; provided that (i) the aggregate proceeds received from all assets so sold, leased or disposed of in any fiscal year (except as otherwise permitted by this Section 7.5), shall not exceed 7.5% of Total Assets; provided, however, to the extent that the Net Cash Proceeds of any Disposition that are not required to be used to prepay the Loans pursuant to Section 2.12 are used to acquire or repair assets in the time period prescribed by Section 2.12, such Disposition shall be disregarded for purposes of calculations pursuant to this Section 7.5 (and shall otherwise be deemed to be permitted under this Section 7.5) to the extent of the Company reinvested proceeds, from and after the date of such reinvestment, (ii) such sale, lease or other disposition shall be for fair market value and (iii) the cash consideration received in respect thereof shall be not less than 75% of such fair market value;
(f) Dispositions of Property constituting Investments permitted under Section 7.8 and Dispositions of Property constituting Restricted Payments permitted by Section 7.6;
(g) the Borrower and its Restricted Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of businessbusiness (x) which are overdue, or (y) which the Borrower or Restricted Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with prudent business practice (and not as part of any bulk sale or financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(creceivables);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition Borrower and its Restricted Subsidiaries may enter into licenses or sublicenses of software, trademarks and other assets (other than Intellectual Property and general intangibles in the Capital Stock ordinary course of any Wholly-Owned Subsidiary, unless all of business and which do not materially interfere with the Capital Stock business of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having Person and could not reasonably be expected to have a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c)Material Adverse Effect;
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; andRecovery Event;
(j) Asset Swaps made in accordance with the requirements any Disposition of the definition thereofSecuritization Assets to a Securitization Subsidiary; or
(k) any issuance or sale of Capital Stock of, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” Indebtedness or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceedssecurities of, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefroman Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Bucyrus International Inc), Credit Agreement (Bucyrus International Inc)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and (dSection 7.4(c);
(d) the sale or issuance of (i) any Recovery EventSubsidiary of the Borrower's Capital Stock to the Borrower or any Subsidiary Guarantor, provided, that (ii) the requirements of Section 2.11(cBorrower's Capital Stock to DOC or (iii) are complied with in connection therewithDOC's Capital Stock to the Parent;
(e) each Dispositions of the Company and its Subsidiaries may sell or discountassets which are Permitted Asset Swaps, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets in aggregate (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01i) $225,000,000 in the aggregate for any fiscal year of DOC (provided that the CompanyMaryland/Michigan Swap shall be deemed consummated in the fiscal year of DOC ended December 31, so long as 2003 for the purposes of the foregoing dollar limitation) and (iii) $475,000,000 during the term of this Agreement; provided that in calculating the Fair Market Value with respect to each Permitted Asset Swap pursuant to this Section 7.5(e), there shall be subtracted from such amount of Fair Market Value the amount of any cash consideration received pursuant to such Permitted Asset Swap to the extent that such cash consideration exceeds 30% of the total consideration received pursuant to such Permitted Asset Swap (such subtracted amount to be in the amount of such excess);
(f) provided that no Default or Event of Default then exists has occurred and is continuing or would result therefrom, other Dispositions of assets (iinot constituting Permitted Asset Swaps, subject as provided below) each such Disposition is in an arm’s-the ordinary course of business on arms length transaction and the Company or the respective Subsidiary receives at least terms for not less than their Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and not to the extent) required by Section 2.11(c);
exceed in aggregate (i) $40,000,000 in any fiscal year of DOC (provided that the Company or any Subsidiary may (iMaryland/Michigan Swap shall be deemed consummated in the fiscal year of DOC ended December 31, 2003 for the purposes of the foregoing dollar limitation) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable $100,000,000 in aggregate during the term of this Agreement; provided that in calculating the aggregate Fair Market Value with respect to Dispositions made during any applicable period pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (iiSection 7.5(f), $20,000,000 there shall be added to such aggregate amount of Fair Market Value an amount equal to that portion of any cash consideration received pursuant to a Permitted Asset Swap during any fiscal year of such period which shall have been subtracted pursuant to the Companyproviso in Section 7.5(e); and
(jg) Asset Swaps made in accordance with any Recovery Event, provided that the requirements of the definition thereof, so long as (iSection 2.12(b) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received are complied with in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromtherewith.
Appears in 2 contracts
Samples: Credit Agreement (Dobson Communications Corp), Credit Agreement (Dobson Communications Corp)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business and the Disposition of Cash Equivalents in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(cSection 7.4(b), 7.4(c) and (d7.8(g)(iii);
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary Guarantor;
(e) the Disposition of Fluid Sciences (which is a reporting segment of the Borrower on the date hereof), for the fair market value thereof; provided, that at least 75% of the consideration for such Disposition shall be in the form of cash;
(f) the Disposition of accounts receivable pursuant to the Receivables Facility and any other receivables facility permitted by Section 7.2(g)(iii);
(g) the Disposition by the Borrower or any Subsidiary Guarantor of assets to Non-Guarantor Subsidiaries, for cash consideration equal to the fair market value of the assets so Disposed of, in an aggregate amount not exceeding $50,000,000 while this Agreement is in effect; provided that any amount received by the Borrower or any Subsidiary Guarantor in excess of an aggregate amount of $25,000,000 shall be deemed to be proceeds received from an Asset Sale (without being subject to the $5,000,000 threshold level) and shall be applied toward prepayment of the Loans to the extent required by Section 2.11(b);
(h) the licensing of Intellectual Property by the Borrower or any Subsidiary Guarantor to any Non-Guarantor Subsidiary on arm's length terms;
(i) the Disposition of other assets having a fair market value not to exceed $5,000,000 in the aggregate for any fiscal year of the Borrower; provided that at least 75% of the consideration for each such Disposition shall be in the form of cash; and
(j) any Recovery Event, provided, that the requirements of Section 2.11(c2.12(b) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Perkinelmer Inc), Credit Agreement (Perkinelmer Inc)
Limitation on Disposition of Property. Dispose of any Property (other than Cash or Cash Equivalents) of Borrower or any of its Property Restricted Subsidiaries (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, except:including, in the case of any Restricted Subsidiary, issuing or selling any shares of such Restricted Subsidiary’s Capital Stock to any Person, except for, subject to compliance with the requirements of Section 2.13(a):
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(bi) leases, subleases and concessions of interests in real and personal property, (ii) the sale of inventory and (iii) licenses of intellectual property, in each case in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and Section 6.4 (dother than Section 6.4(b)(ii));
(d) the sale or issuance of (i) any Recovery EventSubsidiary’s Capital Stock to Borrower or any Subsidiary Guarantor, provided(ii) any Foreign Subsidiary’s Capital Stock to another Foreign Subsidiary, and (iii) during the period that the requirements of Section 2.11(cUA Pass-Through Certificates Restriction is in effect, any UA Subsidiary’s (other than a UA First-Tier Subsidiary) are complied with in connection therewithCapital Stock to another UA Subsidiary;
(e) each Dispositions by Borrower or any of the Company and its Restricted Subsidiaries may sell or discount, in each case without recourse and of other assets having a fair market value not to exceed $100,000,000 in the ordinary course of businessaggregate for any Fiscal Year (commencing on the Closing Date, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transactionrespect to 2010 Fiscal Year);
(f) any Recovery Event;
(g) an exchange or “swap” of fixed, tangible assets of any Restricted Subsidiary for the Scheduled Dispositionsassets of a Person other than Borrower or its Restricted Subsidiaries; provided that, so long as (i) the assets received by Borrower or such Restricted Subsidiary will be used or useful in its respective Line of Business, and (ii) Borrower or such Restricted Subsidiary receives reasonable equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the applicable Restricted Subsidiary); provided further that, the fair market value of all such assets exchanged or “swapped” in any Fiscal Year (commencing on the Closing Date, with respect to the 2010 Fiscal Year) does not exceed $100,000,000 in any such period;
(h) Dispositions permitted under Section 6.8(j), (m), (q) or 6.11 with consideration payable in other than Cash or Cash Equivalents being determined according to the fair market value thereof. For purposes of this Section 6.5(h) the fair market value of any disposed assets other than Cash or Cash Equivalents (i) shall, if such fair market value is less than $25,000,000, be as determined by the board of directors of Borrower, and (ii) shall, if such fair market value is $25,000,000 or more, be determined according to an opinion or valuation with respect to the fair market value of such assets from an independent investment banking firm, appraisal or valuation firm, in each case of national reputation in the United States, which opinion shall have been obtained and delivered to Administrative Agent not later than 30 days after the consummation of such Disposition disposition; provided, however, that in the case of any (A) assets disposed of within 30 days following the acquisition of such assets by Borrower or its Restricted Subsidiaries from a third party that is not an Affiliate in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor(B) securities disposed that, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of disposition, are quoted on a national securities exchange, the requirements of the immediately preceding clauses (i) and (ii) shall not apply and the fair market value of the disposed assets shall be deemed, in the case of clause (A), to be the amount paid for such assets by Borrower or its Restricted Subsidiaries and in the case of clause (B), to be the amount determined according to the closing price of such sale, and (iii) securities on the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated applicable exchange as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year date of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);disposition; and
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes Dispositions of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromExcluded NCM Equity Interests.
Appears in 2 contracts
Samples: Credit Agreement (Regal Entertainment Group), Credit Agreement (Regal Entertainment Group)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c), (d) and (dg) and Investments permitted by Section 6.07(f);
(d) any Recovery Event, provided, that the requirements of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Wholly Owned Subsidiary, unless all of the Capital Stock of such Wholly-Wholly Owned Subsidiary is sold in accordance with this clause (ih)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions Transactions; provided that, to the extent any Permitted Factoring Transaction gives rise to obligations that are recourse to the Company or any Subsidiary of the Company (in an each case other than limited recourse customary for factoring transactions of the same kind and solely recourse to the particular assets or group of assets subject to such Permitted Factoring Transaction, as the case may be), the aggregate face amount of all such Permitted Factoring Transactions giving rise to recourse obligations shall not to exceed, for purposes of this clause (ii), exceed $20,000,000 100,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,00010,000,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition in the ordinary course of business of obsolete or worn out property, or surplus real property not needed in the ordinary course of Borrower’s business;
(b) the sale of inventory in the ordinary course of business;
business (c) Dispositions permitted by Sections 6.03(cincluding, without limitation, the leasing of space on Towers) and (d);
(d) any Recovery Event, provided, that the requirements sale of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and accounts receivable in the ordinary course of businessbusiness which, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time reasonable discretion of the closing of such saleBorrower, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and should be sold to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value collection agency not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $1,000,000 in the aggregate for any fiscal year of the CompanyBorrower;
(c) Dispositions permitted by Section 6.4(b) and Dispositions of Cash Equivalents;
(d) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any Subsidiary Guarantor;
(e) the Disposition of other assets having a fair market value not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(f) the Disposition of Towers in exchange for towers with Total Tower Revenue at least equal in amount to the revenue of such Disposed Towers;
(g) any Asset Sale or Recovery Event, so long as provided, (x) in each case, that the requirements of Section 2.10(a) or 2.10(b),as applicable, are complied with in connection therewith and (y) in the case of any Asset Sale, at least 90% of the consideration payable for such Asset Sale is paid in cash on the date of such Disposition;
(h) Dispositions of (i) no Default or Event of Default then exists or would result therefromnon-Qualified Towers, (ii) each such Disposition is in an arm’swork-length transaction and the Company or the respective Subsidiary receives at least Fair Market Valuein-progress related to cancelled sites, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and assets related to the extentServices Business, provided that, in each case, requirements of Section 2.10(c) required by Section 2.11(c)are complied with;
(i) the Company Disposition of Towers or Tower sites by the Borrower or any of its Subsidiaries to a Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets Guarantor; provided that, after giving effect to any Disposition to a Subsidiary Guarantor, such Towers and Tower sites are subject to a Mortgage pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (iiSection 5.9(b), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with Dispositions of Towers or Tower sites (and any related assets) described on Schedule 6.5(j) pursuant to the requirements of the definition thereofAAT Purchase Agreement, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000provided that, the board Net Cash Proceeds of directors of the Company approves such transfer Dispositions shall be used to repay Revolving Credit Loans pursuant to Section 2.10(c); provided that, it is understood and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each agreed that if such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets Net Cash Proceeds are received by the Company Borrower or any of its Subsidiaries complies with after the requirements of clause (iii) above Conversion Date, the Borrower and its Subsidiaries shall not be required to prepay the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromLoans.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory and the Disposition of cash and Cash Equivalents in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and (d)Section 6.4;
(d) the sale or issuance of any Recovery Event, provided, Subsidiary’s Capital Stock to (i) the Borrower or any Subsidiary Guarantor or (ii) a Subsidiary that is not a Subsidiary Guarantor to the requirements of extent permitted by Section 2.11(c) are complied with in connection therewith6.8;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the CompanyBorrower that contributed, in the aggregate, not more thanfor fair market value so long as (i) no Default or Event for Dispositions in excess of Default then exists or would result therefrom20% of Consolidated EBITDA for the prior fiscal year; provided that in the case of eachany Fiscal Year, (ii) each at least 75% of the total consideration for any such Disposition, shall be received by the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.1 after giving effect to such Disposition is in an arm’s-length transaction (determined on the assumption that such Disposition and the Company repayment of any Indebtedness resulting therefrom had occurred on the first day of the relevant period measured by such covenants); or any Subsidiary Guarantor in the respective Subsidiary receives at least Fair Market Valueform of cash and Cash Equivalents (in each case, (iii) the consideration is paid free and clear of all Liens at the time of the closing of such Dispositionreceived, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required other than non-consensual Liens permitted by Section 2.11(c6.3);
(i) ; provided, that for the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (iie), $20,000,000 during the following shall be deemed to be cash: (A) any fiscal year liabilities (as shown on the Borrower’s or Subsidiary Guarantor’s, as applicable, most recent balance sheet provided hereunder or in the footnotes thereto) of the CompanyBorrower or such Subsidiary Guarantor, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and each Subsidiary Guarantor shall have been validly released by all applicable creditors in writing and (B) any securities received by the Borrower or the Subsidiary Guarantor from such transferee that are converted by the Borrower or such Subsidiary Guarantor 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;
(f) any Disposition constituting a Recovery Event; and
(jg) Asset Swaps made Dispositions of Intellectual Property that in accordance with the requirements exercise of its reasonable business judgment, the Borrower has determined are not of material value to the business of the definition thereofBorrower and its Subsidiaries, so long taken as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefroma whole.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interestsinterests but excluding any payments or transfers of cash not otherwise prohibited hereunder), whether now owned or hereafter acquired, or, in the case of any direct or indirect Subsidiary of any Obligor, such Subsidiary shall not issue or sell any shares of such Subsidiary’s Capital Stock to any Person other than the Borrower or any wholly owned Subsidiary (except to the extent such issue or sale is consummated in connection with a Reorganization Plan), except:
(a) Dispositions of Property solely to another Obligor;
(b) the Disposition of obsolete or worn out property Property in the ordinary course of business; provided that, (i) 100% of the consideration therefor is received by the Obligors in the form of Cash or Cash Equivalents, and (ii) the Net Cash Proceeds of each such transaction are applied to the prepayment of the DIP Loans to the extent required under Section 3.4(b);
(c) Dispositions of spare parts and equipment to the extent that (i) such Property is exchanged with a Person that is a Non-Obligor Subsidiary for credit against the purchase price of Property used or useful in the business of the Obligors, (ii) the proceeds of such Disposition are applied to the purchase price of Property used or useful in the business of the Obligors or (iii) the Net Cash Proceeds of each such transaction are applied to the prepayment of the DIP Loans to the extent required under Section 3.4(b); provided, in each case, that (x) the aggregate amount of Net Cash Proceeds received by or credited to any Obligor in a single transaction, or a series of related transactions, in accordance with this clause (b) shall not exceed $250,000, and (y) the aggregate Net Cash Proceeds received by the Obligors in the aggregate from all Dispositions permitted by this clause (b), together with all Dispositions permitted by clause (a) of this Section 7.6, shall not exceed $1,000,000;
(d) the sale of inventory in the ordinary course of business;
(ce) Dispositions permitted the transfer or other Disposition by Sections 6.03(c) any Obligor in settlement of any amount owed by such Obligor effected in the ordinary course of business and (d)approved by the Bankruptcy Court;
(df) any Recovery Event, provided, that the requirements of as permitted by Section 2.11(c) are complied with in connection therewith7.12;
(eg) each as permitted by Section 7.5, Section 7.8, or Section 7.9;
(h) leases, licenses, subleases or sublicenses of Property in the Company ordinary course of business and its Subsidiaries may sell in accordance with the applicable Security Documents;
(i) Dispositions of Property identified in Schedule 7.6; and
(j) termination, surrender or discount, in each case without recourse and waiver of rights under executory contracts in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Verasun Energy Corp)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary of the Borrower, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of inventory or obsolete or worn out property property, in each case, in the ordinary course of business;
(b) the sale of inventory in the ordinary course of businessDispositions permitted by Section 7.4(b) and 7.11;
(c) Dispositions permitted by Sections 6.03(cthe sale or issuance of any Subsidiary's Capital Stock (other than Disqualified Stock) and (d)to the Borrower or any Subsidiary Guarantor;
(d) the Disposition (i) for cash or Purchase Notes by the Borrower or any of its Subsidiaries of Unoccupied Prison Facilities for a minimum price per bed of $25,000 and (ii) for cash of other Prison Facilities having a fair market value not to exceed $45,000,000 in the aggregate in any fiscal year of the Borrower;
(e) any Disposition of Purchase Notes for fair market value;
(f) any Recovery Event, provided, that the requirements of Section 2.11(c2.12(b) are complied with in connection therewith;
(eg) each The Disposition of the Company Youngstown Facility, provided that (i) the Borrower receives net cash proceeds of at least $50,000,000 and its Subsidiaries may sell (ii) the Disposition is otherwise on terms and conditions satisfactory to the Administrative Agent;
(h) the sale or discount, in each case without recourse and other Disposition of cash or Cash Equivalents in the ordinary course of business;
(i) the sale or Disposition of any Designated Asset pursuant to the terms of the applicable Designated Asset Contract as in effect on the date hereof;
(j) the sale by CCA (U.K.) Ltd, accounts receivable arising a U.K. corporation, of its interest in Agecroft;
(k) the Disposition by the Borrower of its interest in the Agecroft Note; and
(l) leases of Prison Facilities to Governmental Authorities in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any Property (other than Cash or Cash Equivalents) of Borrower or any of its Property Restricted Subsidiaries (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, except:including, in the case of any Restricted Subsidiary, issuing or selling any shares of such Restricted Subsidiary’s Capital Stock to any Person, except for, subject to compliance with the requirements of Section 2.14(a):
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(bi) leases, subleases and concessions of interests in real and personal property, (ii) the sale of inventory and (iii) licenses of intellectual property, in each case in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and Section 6.4 (dother than Section 6.4(b)(ii));
(d) the sale or issuance of (i) any Recovery EventSubsidiary’s Capital Stock to Borrower or any Subsidiary Guarantor, provided(ii) any Foreign Subsidiary’s Capital Stock to another Foreign Subsidiary, and (iii) during the period that the requirements of Section 2.11(cUA Pass-Through Certificates Restriction is in effect, any UA Subsidiary’s (other than a UA First-Tier Subsidiary) are complied with in connection therewithCapital Stock to another UA Subsidiary;
(e) each Dispositions by Borrower or any of the Company and its Restricted Subsidiaries may sell or discount, in each case without recourse and of other assets having a fair market value not to exceed $100,000,000 in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of aggregate for any financing transactionFiscal Year;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c)any Recovery Event;
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) an exchange or “swap” of fixed, tangible assets of any Restricted Subsidiary for the Disposition assets of other assets (a Person other than the Capital Stock of any Wholly-Owned SubsidiaryBorrower or its Restricted Subsidiaries; provided that, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company assets received by Borrower or any such Restricted Subsidiary may (i) sell will be used or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities useful in its respective Line of Business, and (ii) may sell accounts receivable and notes receivable pursuant Borrower or such Restricted Subsidiary receives reasonable equivalent value for such assets, such equivalent value to Permitted Factoring Transactions be demonstrated to the reasonable satisfaction of Administrative Agent (or, in the case of an aggregate face amount not to exceedexchange or “swap” with a non-Affiliate of any Loan Party, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, determined by the board of directors of the Company approves applicable Restricted Subsidiary); provided further that, the fair market value of all such transfer assets exchanged or “swapped” in any Fiscal Year does not exceed $100,000,000; and
(h) Dispositions permitted under Section 6.8(j), (m) or 6.11 with consideration payable in other than Cash or Cash Equivalents being determined according to the fair market value thereof. For purposes of this Section 6.5(h) the fair market value of any disposed assets other than Cash or Cash Equivalents (i) shall, if such fair market value is less than $25,000,000, be as determined by the board of directors of Borrower, and exchange, (ii) shall, if such fair market value is $25,000,000 or more, be determined according to an opinion or valuation with respect to the Fair Market Value fair market value of such assets from an independent investment banking firm, appraisal or valuation firm, in each case of national reputation in the United States, which opinion shall have been obtained and delivered to Administrative Agent not later than 30 days after the consummation of such disposition; provided, however, that in the case of any property assets disposed of within 30 days following the acquisition of such assets by Borrower or assets received its Restricted Subsidiaries from a third party that is not an Affiliate in connection therewith is at least equal to the Fair Market Value of the property or assets so transferredan arm’s-length transaction, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause the immediately preceding clauses (iiii) above and (ii) shall not apply and the Net Cash Proceeds, if any, fair market value of the disposed assets shall be deemed to be the amount paid for such boot assets by Borrower or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromits Restricted Subsidiaries.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, except:
(ai) for the Disposition of any Property that, in the reasonable judgment of the Borrower, has become uneconomic, obsolete or worn out property out, and which is disposed of in the ordinary course of business;
(bii) the sale of inventory in the ordinary course of business;
(ciii) Dispositions permitted for sales or disposition of assets (including accounts receivables) by Sections 6.03(cthe Borrower after the date hereof; provided however, that (A) such sale or other disposition shall be made for fair sale value on an arm's-length basis, (B) at least seventy-five percent (75%) of the purchase price therefore shall be paid in cash and such cash portion of the purchase price shall be payable at (or prior to) the time of such Disposition, (C) the Borrower uses the net cash proceeds for general corporate purposes (including debt retirement or working capital purposes) and (d)D) the Borrower shall comply with the Indenture of Mortgage and Deed of Trust and Section 5.03 hereof, if applicable;
(div) any Recovery Event, provided, that the requirements Borrower may cancel or make changes or alterations in or substitutions for any and all easements, servitudes, rights of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company way and its Subsidiaries may sell similar rights or discountinterests, in each case without recourse and in the ordinary course of business;
(v) that the Borrower may grant easements, accounts receivable arising ground leases or rights-of-way in, upon, over or across property or rights-of-way, provided such grant shall not materially impair the use of the property or rights-of-way for the purposes for which such property or rights-of-way are held, in each case in the ordinary course of business, but only ;
(vi) for operating leases entered into ordinary course of business;
(vii) for any Disposition of Property that is Disposed in a sale-leaseback transaction entered into in connection with a payment-in-lieu-of- DC1 - 221047.18 taxes arrangement pursuant to the compromise or collection thereof and not as part Revised Statutes of any financing transaction;
(f) the Scheduled DispositionsMissouri, so long as (i) each provided that if such Disposition is in an arm’s-length transaction with respect to Collateral, such arrangement expressly allows the Property to be subject to the Liens under the Indenture of Mortgage and Deed of Trust and the Company or and the respective Subsidiary receives at least Fair Market Value therefor, (ii) Administrative Agent shall have agreed upon the consideration received by applicable adjustment to be made to the Company or its relevant Subsidiary consists solely of cash and is paid at the time denominator of the closing Asset to Loan Ratio as a result of such sale, and transaction; or
(iiiviii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) for any Disposition required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition a Requirement of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromLaw.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c7.4(c) and (d);
(d) any Recovery Event, provided, that the requirements of Section 2.11(c2.12(b) are complied with in connection therewith;
(e) each of the Company Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company US Borrower or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company US Borrower or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c2.12(b);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.107.11;
(h) the consummation of the Nashville Headquarters Sale-Leaseback Transaction in accordance with the requirements of Section 7.11;
(i) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $20,000,000 in the aggregate for any fiscal year of the CompanyUS Borrower, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company US Borrower or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by the US Borrower or such Subsidiary consists solely of cash and is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c2.12(b);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition in the ordinary course of business of obsolete or worn out property, or surplus real property not needed in the ordinary course of Borrower’s business;
(b) the sale of inventory in the ordinary course of business;
business (c) Dispositions permitted by Sections 6.03(cincluding, without limitation, the leasing of space on Towers) and (d);
(d) any Recovery Event, provided, that the requirements sale of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and accounts receivable in the ordinary course of businessbusiness which, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time reasonable discretion of the closing of such saleBorrower, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and should be sold to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value collection agency not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $1,000,000 in the aggregate for any fiscal year of the CompanyBorrower;
(c) Dispositions permitted by Section 7.4(b) and Dispositions of Cash Equivalents;
(d) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any Subsidiary Guarantor;
(e) the Disposition of other assets having a fair market value not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(f) the Disposition of Towers in exchange for towers with Total Tower Revenue at least equal in amount to the revenue of such Disposed Towers;
(g) any Asset Sale or Recovery Event, so long provided, (x) in each case, that the requirements of Section 2.10(a) or 2.10(b), as applicable, are complied with in connection therewith and (y) in the case of any Asset Sale, at least 90% of the consideration payable for such Asset Sale is paid in cash on the date of such Disposition;
(h) Dispositions of (i) no Default or Event of Default then exists or would result therefromnon-Qualified Towers, (ii) each such Disposition is in an arm’swork-length transaction and the Company or the respective Subsidiary receives at least Fair Market Valuein-progress related to cancelled sites, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and assets related to the extentServices Business, provided that, in each case, requirements of Section 2.10(c) required by Section 2.11(c)are complied with;
(i) the Company Disposition of Towers or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received Tower sites by the Company Borrower or any of its Subsidiaries complies with the requirements to a Subsidiary Guarantor; provided that, after giving effect to any Disposition to a Subsidiary Guarantor, such Towers and Tower sites are subject to a Mortgage pursuant to Section 6.9(b);
(j) Dispositions of clause (iii) above and the Net Cash Proceeds, if any, of such boot Towers or other assets (including any “boot” received in the form of cash) are applied as Tower sites (and any related assets) described on Schedule 7.5(j) pursuant to the extentAAT Purchase Agreement; and
(k) required Dispositions of the Towers listed on Schedule 7.5(k) which are currently held for sale by Section 2.11(c)the Borrower and its Subsidiaries and are included in “discontinued operations”, and (v) no Default or Event of Default then exists or would result therefromtogether with any work product related to such Towers.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property Property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions dispositions permitted by Sections 6.03(c) and (dSection 7.4(b);
(d) the sale or issuance of any Recovery Event, provided, that the requirements of Section 2.11(c) are complied with in connection therewithSubsidiary’s Capital Stock to a Borrower or any Subsidiary Guarantor;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value fair market value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $10,000,000 in the aggregate for any fiscal year of the CompanyBorrowers, so long as provided, that, the fair market value of all fee or leased real property disposed of in any fiscal year pursuant to this Section 7.5(e) shall not exceed $5,000,000 in the aggregate;
(f) in connection with any Recovery Event;
(g) Sale and leaseback transactions permitted by Section 7.10;
(h) Dispositions of fee owned or leased real Property interests of the Borrowers or any of their Subsidiaries (other than Dispositions of Surplus Growth Capital Expenditures) not otherwise permitted hereunder which are made for fair market value; provided, that (i) at the time of any Disposition, no Default or Event of Default then exists shall exist or would shall result therefromfrom such Disposition, (ii) each one hundred percent (100%) of the aggregate sales price from such Disposition is shall be paid in an arm’s-length transaction and the Company cash or the respective Subsidiary receives at least Fair Market ValueCash Equivalents, (iii) such Dispositions shall yield (either individually or collectively in a series of related Dispositions that shall occur within any six month period) Total Consideration of at least six times the consideration amount of Consolidated EBITDA generated by such real Property interests during any twelve (12) month period ending on or after the date which is paid nine (9) months prior to the date of such Disposition or, with respect to a series of related Dispositions, prior to the date of the first Disposition of such series (calculated on an aggregate basis for all such real Property interests that are part of the same or a related series of Dispositions occurring within any six month period, pursuant to one or more binding purchase agreements, which may involve different purchasers), as certified by a Responsible Officer, and accompanied by a Compliance Certificate containing all information and calculations necessary for determining the same; and (iv) the aggregate fair market value of all fee owned or leased real Property interests so sold by the Borrowers and their Subsidiaries, collectively, shall not exceed (x) $15,000,000 in any Fiscal Year of the Borrowers and (y) $60,000,000 at all time from and after the First Amendment Effective Date;
(i) Dispositions of personal Property, plant and equipment associated with the fee owned or leased real Property disposed of pursuant to Section 7.5(h) that are made for fair market value; provided, that (i) at the time of the closing any Disposition, no Event of Default shall exist or shall result from such Disposition, and (ivii) one hundred percent (100%) of the Net aggregate sales price from such Disposition shall be paid in cash or Cash Proceeds therefrom are applied and/or reinvested as Equivalents;
(and j) licenses, sublicenses, leases or subleases granted to third parties not interfering with the extent) required by Section 2.11(cbusiness of the Loan Parties or any of their Subsidiaries in any material respect (but specifically excluding any sale-leaseback transaction or any lease of real Property);
(ik) lapse, abandonment or other dispositions of intellectual property that is, in the reasonable good faith judgment of a Loan Party, no longer economically practicable or commercially desirable to maintain or useful in the conduct of the business of the Loan Parties or any of their Subsidiaries;
(l) settlement of delinquent Accounts in the ordinary course of business or in connection with the bankruptcy or reorganization of suppliers or customers;
(m) transactions expressly permitted pursuant to Section 7.8 hereof;
(n) any involuntary loss, damage or destruction of Property, including, without limitation, condemnation, seizure and eminent domain;
(o) the Company sale or any Subsidiary may issuance of Capital Stock of Holdings or Mapco Express that does not result in a Change of Control;
(p) transfers of Property to a Joint Venture in connection with a Build to Suit Project, provided (x) the aggregate fair market value of all assets so transferred with respect to all Joint Ventures shall not exceed $5,000,000 reduced by the aggregate amount of all Investments made pursuant to Section 7.8(l) (including, without limitation, all cash Investments and all Capital Expenditures expended by the Borrowers and their Subsidiaries at or with respect to all Build to Suit Leased Locations owned by Joint Ventures), and (y) the aggregate fair market value of all assets transferred to a Joint Venture in connection with each individual Build to Suit Project shall not exceed $1,500,000 reduced by the aggregate amount of all Investments made with respect to such Build to Suit Project pursuant to Section 7.8(l) (including, without limitation, all cash Investments and all Capital Expenditures expended by the Borrowers and their Subsidiaries at or with respect to such Build to Suit Leased Location owned by a Joint Venture);
(q) to the extent constituting a Disposition of Property, Liens permitted pursuant to Section 7.3; and
(r) Dispositions of Surplus Growth Capital Expenditures which are sold for fair market value, provided, that (i) sell one hundred percent (100%) of the aggregate sales price from such Disposition shall be paid in cash or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and Cash Equivalents, (ii) may sell accounts receivable the Surplus Growth Capital Expenditures are Disposed of within twenty four (24) months following the date such Surplus Growth Capital Expenditures were made and notes receivable pursuant (iii) the aggregate fair market value of all Surplus Growth Capital Expenditures permitted to Permitted Factoring Transactions be Disposed of by the Borrowers and their Subsidiaries, collectively, shall not exceed $9,000,000 in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the CompanyBorrowers; and
(j) Asset Swaps made provided, further, that, no more than $3,000,000 of the Surplus Growth Capital Expenditures disposed of in any fiscal year in accordance with the requirements forgoing shall be attributable to Surplus Growth Capital Expenditures made in any fiscal year and any Surplus Growth Capital Expenditures made in any fiscal year in excess of $3,000,000 may not be Disposed of by the Borrowers and their Subsidiaries (for purposes of illustration only, if the Loan Parties made Surplus Growth Capital Expenditures of (x) $5,000,000 on June 30, 2011, (y) $0.00 in the fiscal year ending December 31, 2012 and (z) $3,000,000 on April 30, 2013, and none of such Surplus Growth Capital Expenditures have been Disposed of as of April 30 2013, then the Loan Parties would be permitted to Dispose of $6,000,000 of Surplus Capital Expenditures during the fiscal year ending December 31, 2013, which would represent $3,000,000 of the definition thereofSurplus Capital Expenditures made on June 30, so long as (i) if the Fair Market Value 2011 and $3,000,000 of the assets transferred exceeds $2,500,000Surplus Capital Expenditures made on April 30, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c2013), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or obsolete, worn out or surplus property in the ordinary course of business;
(b) the sale of inventory inventory, the sale or lease of equipment and the license of Intellectual Property, in each case in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and (dSection 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to any of the Borrowers or any Subsidiary Guarantor;
(e) Restricted Payments permitted under Section 7.6;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal to the aggregate fair market value of the Cash Equivalents so Disposed of;
(g) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted by Section 7.4(d), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
(i) any Recovery Event, provided, that the requirements of Section 2.11(c2.11(b) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property Property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions dispositions permitted by Sections 6.03(c) and (dSection 7.4(b);
(d) the sale or issuance of any Recovery Event, provided, that the requirements of Section 2.11(c) are complied with in connection therewithSubsidiary’s Capital Stock to a Borrower or any Subsidiary Guarantor;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value fair market value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $10,000,000 in the aggregate for any fiscal year of the CompanyBorrowers, so long as provided, that, the fair market value of all fee or leased real property disposed of in any fiscal year pursuant to this Section 7.5(e) shall not exceed $5,000,000 in the aggregate;
(f) in connection with any Recovery Event;
(g) Sale and leaseback transactions permitted by Section 7.10;
(h) Dispositions of fee owned or leased real Property interests of the Borrowers or any of their Subsidiaries (other than Dispositions of Surplus Growth Capital Expenditures) not otherwise permitted hereunder which are made for fair market value; provided, that (i) at the time of any Disposition, no Default or Event of Default then exists shall exist or would shall result therefromfrom such Disposition, (ii) each one hundred percent (100%) of the aggregate sales price from such Disposition is shall be paid in an arm’s-length transaction and the Company cash or the respective Subsidiary receives at least Fair Market ValueCash Equivalents, (iii) such Dispositions shall yield (either individually or collectively in a series of related Dispositions that shall occur within any six month period) Total Consideration of at least six times the consideration amount of Consolidated EBITDA generated by such real Property interests during any twelve (12) month period ending on or after the date which is paid nine (9) months prior to the date of such Disposition or, with respect to a series of related Dispositions, prior to the date of the first Disposition of such series (calculated on an aggregate basis for all such real Property interests that are part of the same or a related series of Dispositions occurring within any six month period, pursuant to one or more binding purchase agreements, which may involve different purchasers), as certified by a Responsible Officer, and accompanied by a Compliance Certificate containing all information and calculations necessary for determining the same; and (iv) the aggregate fair market value of all fee owned or leased real Property interests so sold by the Borrowers and their Subsidiaries, collectively, shall not exceed (x) $15,000,000 in any Fiscal Year of the Borrowers and (y) $60,000,000 at all times from and after the Third Restatement Effective Date;
(i) Dispositions of personal Property, plant and equipment associated with the fee owned or leased real Property disposed of pursuant to Section 7.5(h) that are made for fair market value; provided, that (i) at the time of the closing any Disposition, no Event of Default shall exist or shall result from such Disposition, and (ivii) one hundred percent (100%) of the Net aggregate sales price from such Disposition shall be paid in cash or Cash Proceeds therefrom are applied and/or reinvested as Equivalents;
(and j) licenses, sublicenses, leases or subleases granted to third parties not interfering with the extent) required by Section 2.11(cbusiness of the Loan Parties or any of their Subsidiaries in any material respect (but specifically excluding any sale-leaseback transaction or any lease of real Property);
(ik) lapse, abandonment or other dispositions of intellectual property that is, in the Company reasonable good faith judgment of a Loan Party, no longer economically practicable or commercially desirable to maintain or useful in the conduct of the business of the Loan Parties or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; andtheir Subsidiaries;
(jl) Asset Swaps made settlement of delinquent Accounts in accordance with the requirements ordinary course of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property business or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment the bankruptcy or reorganization of suppliers or customers;
(m) transactions expressly permitted by pursuant to Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.7.8 hereof;
Appears in 1 contract
Limitation on Disposition of Property. Dispose Except for Excluded Subsidiaries, dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property Property in the ordinary course of business;
(b) the sale of inventory inventory, hydrocarbon production, other mineral products and products refined therefrom in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and (dsubsection 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary Guarantor;
(e) any Recovery Event, ; provided, that the requirements of Section 2.11(csubsection 2.10(b) are complied with in connection therewith;
(ef) each other Dispositions outside the ordinary course of business occurring during the term of this Agreement which yield gross proceeds to the Borrower or any of its Subsidiaries (valued at the initial 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) in an aggregate amount not in excess of $25,000,000;
(g) Asset Sales not otherwise permitted by this subsection 7.5; provided, that (i) the aggregate book value of all assets which are the subject thereof does not exceed, during the term of this Agreement, 1% of the Company aggregate book value of the assets of the Borrower and its Subsidiaries after giving effect to the Acquisitions and (ii) the requirements of subsection 2.10(b) are complied with in connection therewith;
(h) any trade or exchange by the Borrower or any Subsidiary Guarantor of any Oil and Gas Property for Property owned or held by another Person; provided that (i) the fair market value of the Oil and Gas Property so traded or exchanged by (together with any accompanying cash or Cash Equivalents paid by) the Borrower or such Subsidiary Guarantor, as the case may sell be (the "Released Property"), is substantially equivalent to the fair market value of the Property (together with any accompanying cash or discountCash Equivalents) received by the Borrower or such Subsidiary Guarantor, as the case may be, in each case without recourse connection with such trade or exchange (the "Received Property") and (ii) if the Released Property constitutes Collateral immediately prior to such trade or exchange, then the Received Property shall 82 77 constitute Collateral and, accordingly, shall be pledged to the Collateral Agent, for the benefit of the Lenders, in the manner provided in the applicable paragraph or paragraphs of subsection 6.9; provided, further, that the aggregate value of all Oil and Gas Properties traded or exchanged and any accompanying cash or Cash Equivalents paid by the Borrower and the Subsidiary Guarantors pursuant to this subsection 7.5(h) in connection with the business of the Borrower and its Subsidiaries conducted outside of South America shall not exceed $50,000,000;
(i) the sale or transfer (whether or not in the ordinary course of business) of crude oil or natural gas properties or direct or indirect interests in real property; provided, accounts receivable arising that at the time of any such sale or transfer, the Property being sold or transferred does not have associated with it any proved reserves; and
(j) the abandonment, farmout, lease or sublease of developed or undeveloped crude oil or natural gas properties in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its ------------------------------------- Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition in the ordinary course of business of obsolete or worn out property, or surplus real property not needed in the ordinary course of Borrower's business;
(b) the sale of inventory in the ordinary course of business;
business (c) Dispositions permitted by Sections 6.03(cincluding, without limitation, the leasing of space on Towers) and (d);
(d) any Recovery Event, provided, that the requirements sale of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and accounts receivable in the ordinary course of businessbusiness which, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time reasonable discretion of the closing of such saleBorrower, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and should be sold to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value collection agency not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $1,000,000 in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c)Borrower;
(ic) Dispositions permitted by Section 7.4(b) and Dispositions of Cash Equivalents;
(d) the Company sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary may Guarantor;
(ie) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount the Disposition of other assets having a fair market value not to exceed, exceed $1,000,000 in the aggregate for purposes of this clause (ii), $20,000,000 during any fiscal year of the CompanyBorrower;
(f) the Disposition of Towers in exchange for towers with revenue at least equal in amount to the revenue of such Disposed Towers; and
(jg) any Asset Swaps made Sale or Recovery Event, provided, in accordance with each case, that the -------- requirements of the definition thereof, so long as (iSection 2.10(a) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received are complied with in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromtherewith.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary of Holdings, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of (i) obsolete or worn out property Property in the ordinary course of business or (ii) Property that is no longer useful in the conduct of the Borrower's business in the ordinary course of such business, provided that, in the case of clause (ii), an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b);
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(cSection 7.4(a) or (c) or clauses (i) and (dii) of Section 7.4(b);
(d) the sale or issuance of (i) any Subsidiary's Capital Stock to (x) the Borrower or any Subsidiary Guarantor or (y) any other Subsidiary (provided that neither Subsidiary is a Subsidiary Guarantor) or (ii) Capital Stock (other than Disqualified Stock) of the Borrower to Holdings, in each case in a transaction expressly permitted by Section 7.8;
(e) the Disposition by the Borrower and its Subsidiaries of other assets having a fair market value not to exceed $35,000,000 in the aggregate for any fiscal year of the Borrower provided that at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents;
(f) (i) the Disposition of any Investment made pursuant to Section 7.8(b), (h), or (n) or (ii) the Disposition of any Investment permitted pursuant to Section 7.8(i); provided that in the case of clause (ii), unless such Investment permitted under Section 7.8(i) was acquired in a Disposition under a clause specified in the parenthetical of the definition of "Asset Sale", an amount equal to the Net Cash Proceeds of such Disposition is applied as and to the extent required by Section 2.12(b);
(g) Dispositions resulting from a Recovery Event, provided, that the requirements of Section 2.11(c2.12(b) are complied with in connection therewith;
(eh) each (i) the discount, write-off or sale of overdue accounts receivables and (ii) the Company and its Subsidiaries may sell factoring at maturity or discountcollection of any account receivables, in each case without recourse and in the ordinary course of business, accounts receivable arising ;
(i) the lease or license (or sublease or sublicense) of real or personal property (including Intellectual Property) in the ordinary course of business;
(j) the sale or exchange of specific items of Property, but only so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of Property which are, in the reasonable business judgment of the Borrower, the functional equivalent of the items of Property so sold or exchanged;
(k) the cancellation of any Indebtedness constituting an Investment permitted pursuant to Section 7.8 (other than any Indebtedness of any Foreign Subsidiary to the Borrower or any Subsidiary Guarantor (other than any such Indebtedness cancelled in connection with the compromise sale of such Foreign Subsidiary to a Person other than the Borrower and its Subsidiaries) (any such cancelled Indebtedness of a Foreign Subsidiary, "Cancelled Foreign Debt")) which the Borrower reasonably believes to be uncollectible;
(l) the sale, contribution, transfer or collection thereof other Disposition of Receivables Assets to a Special Purpose Subsidiary for the fair market value of those assets, less amounts required to be established as reserves and customary discounts pursuant to contractual agreements with entities that are not Affiliates of the Borrower, entered into as part of any financing transaction;
(f) the Scheduled Dispositionsa Receivable Financing Transaction, so long as no Event of Default under Section 8(a) or 8(f) has occurred and is continuing at the time of such Disposition;
(m) the Disposition of Receivables Assets by a Special Purpose Subsidiary in a Receivable Financing Transaction;
(n) issuances of Stock by a Special Purpose Subsidiary to the Borrower or a Subsidiary in connection with a Receivable Financing Transaction;
(o) Dispositions permitted by Section 7.11, provided that (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents and (ii) an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b); and
(p) issuances by the Borrower or Holdings of its Disqualified Stock permitted by Section 7.2(p); and
(q) Dispositions of the Electrolytic Assets; provided that (i) at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents, (ii) an amount equal to the consideration received Net Cash Proceeds thereof is applied as and to the extent required by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, Section 2.12(b) and (iii) Holdings is in compliance, on a pro forma basis after giving effect to such Disposition and the Net Cash Proceeds therefrom are applied and/or reinvested use of proceeds thereof, with the covenants contained in Section 7.1, in each case recomputed as (and to at the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as last day of the most recent recently ended fiscal quarter of Holdings for which the relevant information is available as if such incurrence had occurred on the first day of each relevant period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each testing such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromcompliance.
Appears in 1 contract
Samples: Credit Agreement (Tronox Inc)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition in the ordinary course of business of obsolete or worn out property, or surplus real property not needed in the ordinary course of Borrower's business;
(b) the sale of inventory in the ordinary course of business;
business (c) Dispositions permitted by Sections 6.03(cincluding, without limitation, the leasing of space on Towers) and (d);
(d) any Recovery Event, provided, that the requirements sale of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and accounts receivable in the ordinary course of businessbusiness which, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time reasonable discretion of the closing of such saleBorrower, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and should be sold to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value collection agency not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) $1,000,000 in the aggregate for any fiscal year of the CompanyBorrower;
(c) Dispositions permitted by Section 6.4(b) and Dispositions of Cash Equivalents;
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary Guarantor;
(e) the Disposition of other assets having a fair market value not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(f) the Disposition of Towers in exchange for towers with Total Tower Revenue at least equal in amount to the revenue of such Disposed Towers;
(g) any Asset Sale or Recovery Event, so long as provided, (x) in each case, that the requirements of Section 2.10(a) or 2.10(b),as applicable, are complied with in connection therewith and (y) in the case of any Asset Sale, at least 90% of the consideration payable for such Asset Sale is paid in cash on the date of such Disposition;
(h) Dispositions of (i) no Default or Event of Default then exists or would result therefromnon-Qualified Towers, (ii) each such Disposition is in an arm’swork-length transaction and the Company or the respective Subsidiary receives at least Fair Market Valuein-progress related to cancelled sites, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and assets related to the extentServices Business, provided that, in each case, requirements of Section 2.10(c) required by Section 2.11(c)are complied with;
(i) the Company Disposition of Towers or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received Tower sites by the Company Borrower or any of its Subsidiaries complies to a Subsidiary Guarantor; provided that, after giving effect to any Disposition to a Subsidiary Guarantor, such Towers and Tower sites are subject to a Mortgage pursuant to Section 5.9(b);
(j) Dispositions of Towers or Tower sites (and any related assets) pursuant to the First Closing and the Second Closing under the AAT Initial Asset Sale by the Borrower or any of its Subsidiaries pursuant to the AAT Initial Asset Sale, provided that, the net cash proceeds of the AAT Initial Asset Sale may only be used (i) to repay the loans outstanding under the Existing Credit Facility pursuant to Section 4.1(p) or (ii) repay Revolving Credit Loans pursuant to Section 2.10(c); and
(i) Disposition of Towers or Tower sites (and any related assets) located in Wisconsin (the "Option Towers") pursuant to a Wisconsin Notice, and any Closing (other than the First Closing and the Second Closing) (as each such term is defined in the AAT Purchase Agreement in effect on the date hereof) and (ii) in the event that the Option Towers are not Disposed of pursuant to a Wisconsin Notice, Disposition of Towers or Tower sites (and any related assets) on or prior to June 30, 2003 with an aggregate Current TCF (as defined in the AAT Purchase Agreement) for all such Towers or Tower sites Disposed of pursuant to this clause (ii) not exceeding $4,300,000, provided that, in each case, the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cashSection 2.10(c) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefromcomplied with.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property Property or other Property no longer used or useful in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions of Cash Equivalents and Dispositions permitted by Sections 6.03(c) and (d)Section 7.4;
(d) the sale or issuance of any Subsidiary's Capital Stock (other than Disqualified Stock) to the Borrower or any Subsidiary Guarantor;
(e) Asset Sales, each on an arms' length basis, for which the consideration received is not less than the Fair Market Value of the assets being disposed of, not to exceed in aggregate (i) $60,000,000 in the case of any single Asset Sale or (ii) $100,000,000 in any fiscal year of the Borrower, PROVIDED, HOWEVER, that no Asset Sale involving assets with a Fair Market Value of more than $20,000,000 may be consummated unless after giving effect to such Asset Sale and the application of the proceeds thereof, in each case, as if they had occurred on the first day of the 12-month period ending on the last day of the fiscal quarter of the Borrower then most recently ended, the Borrower would have been in compliance, as of the last day of such fiscal quarter, with each of the financial condition covenants set forth in Section 7.1, PROVIDED, FURTHER, that in the event that any Permitted Acquisition is consummated concurrently with such Asset Sale, the pro forma effect of such Permitted Acquisition (as contemplated by clause (ii) of the definition of "Permitted Acquisition") shall be taken into account in determining whether such Asset Sale meets the pro forma compliance test of the immediately preceding proviso;
(f) the Asset Sales referred to in Section 2.12(a)(iii); and
(g) any Recovery Event, provided, that if the requirements of Section 2.11(c2.12(b) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Owned Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is sold in accordance with this clause (i)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, except:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 6.03(c) and (d);
(d) any Recovery Event, provided, that the requirements of Section 2.11(c) are complied with in connection therewith;
(e) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(f) the Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value therefor, (ii) the consideration received by the Company or its relevant Subsidiary consists solely of cash and is paid at the time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(g) Permitted Sale-Leaseback Transactions permitted by Section 6.10;
(h) the Disposition of other assets (other than the Capital Stock of any Wholly-Wholly Owned Subsidiary, unless all of the Capital Stock of such Wholly-Wholly Owned Subsidiary is sold in accordance with this clause (ih)) having a Fair Market Value not to exceed 5% of Consolidated Total Assets (calculated as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01) in the aggregate for any fiscal year of the Company, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration is paid at the time of the closing of such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(i) the Company or any Subsidiary may (i) sell or pledge Permitted Receivables Facility Assets pursuant to Permitted Receivables Facilities and (ii) may sell accounts receivable and notes receivable pursuant to Permitted Factoring Transactions in an aggregate face amount not to exceed, for purposes of this clause (ii), $20,000,000 40,000,000 during any fiscal year of the Company; and
(j) Asset Swaps made in accordance with the requirements of the definition thereof, so long as (i) if the Fair Market Value of the assets transferred exceeds $2,500,00010,000,000, the board of directors of the Company approves such transfer and exchange, (ii) the Fair Market Value of any property or assets received in connection therewith is at least equal to the Fair Market Value of the property or assets so transferred, (iii) each such Asset Swap is effected in connection with an Investment permitted by Section 6.07, (iv) to the extent applicable, any “boot” or other assets received by the Company or any of its Subsidiaries complies with the requirements of clause (iii) above and the Net Cash Proceeds, if any, of such boot or other assets (including any “boot” received in the form of cash) are applied as (and to the extent) required by Section 2.11(c), and (v) no Default or Event of Default then exists or would result therefrom.
Appears in 1 contract