Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition: (a) is of obsolete or worn out property or property no longer used or useful in its business; or (b) is for fair market value and the following conditions are met: (i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii); (ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents; (iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and (iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof, (c) is a sale of inventory in the ordinary course of business; (d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities; (i) is a sale or disposition of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged; (f) is expressly otherwise permitted by Section 10.05 or 10.06; (g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party; (h) cancellations of any intercompany Indebtedness among the Credit Parties; (i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term; (j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof; (k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice; (l) use or exchange of cash and Cash Equivalents in the ordinary course of business; (m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary; (n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii); (o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses; (p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business; (q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04; (r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business; (s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens; (t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements; (u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary; (v) [reserved]; (i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and (x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party.
Appears in 4 contracts
Samples: Credit Agreement (Grindr Inc.), Credit Agreement (Tiga Acquisition Corp.), Credit Agreement (Tiga Acquisition Corp.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
(a) is of obsolete or worn out property or property no longer used or useful in its business; or
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
Equivalents (iii) such Dispositions shall provided that Borrower may designate any non-cash consideration in an aggregate amount not to exceed $5,000,000 in the aggregate since the Closing Dateto constitute cash for purposes of this clause (ii)); and
(iviii) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory or dealerization of a location in the ordinary course of business;
(d) is the leasing, as lessor, subleasing subleasing, licensing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiesfacilities or Units;
(ie) is a sale or disposition of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged);
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) together with the outstanding aggregate principal amount of Indebtedness incurred under Section 10.01(p), shall not exceed $1,000,000 5,0000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedyear, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of businessbusiness consistent with past practice, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid the lessee is obligated to pay rent on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii5.02(a)(iv), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii5.02(a)(iv);
(o) sales of non-core assets (“non-core assets” to be determined by the a Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted AcquisitionAcquisition or portions of real property acquired in connection with the acquisition or construction of a new location which are not necessary for the operation of such location, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(ui) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such SubsidiarySubsidiary and (ii) the issuance of Capital Stock of the Borrower so long as no Change of Control occurs;
(v) [reserved]sale-leaseback transactions permitted under Section 10.14;
(iw) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and;
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 10,000,000 during each fiscal year;
(y) contributions of assets acquired in Permitted Acquisitions to GPMP (or GPM Petroleum, LLC) in exchange for additional Capital Stock of GPMP; provided, that the aggregate fair market value of such assets for all such contributions under this clause (y) shall not exceed $100,000,000; and
(z) exchange transactions under Section 1031 of the Code. provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partydivision.
Appears in 3 contracts
Samples: Credit Agreement (ARKO Corp.), Credit Agreement (ARKO Corp.), Credit Agreement (ARKO Corp.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the proceeds thereof are applied in accordance with this Agreement;
(c) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), aggregate amount of Dispositions during any fiscal year shall not exceed 5.00% of the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);Total Assets of the Credit Parties.
(ii) immediately prior to and immediately after giving effect to such Disposition, no less than seventy-five percent (75%) Event of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Material Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) Borrower applies any Net Disposition Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) no less than eighty percent (80%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(d) is a sale of inventory Inventory (as defined in the UCC and PPSA, as applicable) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment or fixed assets to the extent that such property equipment or fixed asset is exchanged for credit against the purchase price of similar replacement propertyequipment or fixed asset, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment or fixed asset, all in the ordinary course of business and in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other Disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party;
(g) is otherwise permitted by Section 10.05 or 10.069.03;
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or (ii) any Credit Party to an Immaterial Subsidiary; provided, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party Dispositions made pursuant to any Subsidiary that is not a Credit Party the preceding sub-clause (x) shall be for fair market value and (yii) shall not exceed $1,000,000 2,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Partiesyear;
(i) consists of the granting of Permitted Liens;
(j) consists of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable (ior a promissory note evidencing accounts receivable or the settlement thereof) arising in the non-exclusive licensing ordinary course of non-material Intellectual Property business in connection with the collection thereof;
(l) consists of the leasing (pursuant to third Persons leases entered into in the ordinary course of business) or licensing of real or personal property in the ordinary course of business;
(m) consists of a surrender or waiver of contract rights or a settlement, (ii) the transferrelease or surrender of contract, abandonment, lapse tort or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its businessclaims, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or consists of a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venturers or similar venture parties set forth in the relevant joint venture arrangements and/or and similar binding arrangementsagreements and the transfer of assets as part of the consideration for Investment in a joint venture permitted under Section 9.05;
(uo) consists of Dispositions made in connection with the sale or issuance unwinding of any Subsidiary’s Capital Stock to Borrower Hedging Obligations permitted under Section 9.11 or a Credit Party or any Subsidiary that is the direct parent of such Subsidiarysale and leaseback transaction permitted under Section 9.08;
(vp) [reserved];
(i) termination consists of leases or subleases charitable donations made in cash and in the ordinary course of business; , to the extent such assets are not material to the ability of the Credit Parties to conduct the Business;
(iiq) is a Disposition of Real Property to a Governmental Authority that results from a condemnation, provided that (other than with respect to Real Property with a first-lien mortgage in favor of a third party) the expiration of any option agreement proceeds thereof are applied in respect of real accordance with this Agreement;
(r) is a Disposition set forth on Schedule 9.04;
(s) licenses, sublicenses, leases or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims subleases granted to third parties in the ordinary course of businessbusiness (but limited, in the case of licenses of intellectual property, to non-exclusive licenses) so long as such licenses, sublicenses, leases or subleases (i) do not interfere with the business of the Credit Parties and (ii) are not materially adverse to the interests of the Secured Parties;
(t) is a Disposition of Real Property that is subject to a first-lien mortgage in favor of a third party;
(u) are Dispositions of Opco Agreements to third parties on an arms’ length basis; and
(xv) other are Dispositions by any Credit Party constituting Restricted Payments permitted under Section 9.06. Notwithstanding anything to the contrary set forth in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of the Collateral Agent pursuant to the Credit Party permit Documents and Liens described in Section 9.02(w)) any of its Subsidiaries to, directly rights under or indirectly, in respect of any Material Contract (iexcept as set forth in the preceding clauses (r) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act and (u)) or any analogous action taken accounts receivable, Collections or proceeds arising thereunder or with respect thereto; provided, that this sentence shall not prohibit Dispositions required to be made pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless so long as the Net Disposition Proceeds from such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit PartyDisposition are applied as required by Section 4.02(a)(ii).
Appears in 3 contracts
Samples: Credit Agreement (Verano Holdings Corp.), Credit Agreement (Verano Holdings Corp.), Credit Agreement
Permitted Dispositions. Each Credit Loan Party will not, and will not permit any of its SubsidiariesSubsidiaries to, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Loan Party’s or such other PersonSubsidiary’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions transactions, unless such Disposition:
(a) is in the Ordinary Course of obsolete Business and is of obsolete, worn out, unused or worn out surplus property or property no longer not presently used or useful in its business; or;
(b) is for fair market value and the following conditions are met:
(i) the aggregate fair market value of Dispositions during any fiscal year does not exceed $1,000,000;
(ii) immediately prior to and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(iii) the extent required by Section 5.02(a)(iii), the Borrower has applied Borrowers apply any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii4.02(a)(ii);; and
(iiiv) no less than seventy-five percent (75%) of the consideration received for such Disposition sale, transfer, lease, contribution or conveyance is received in cash or Cash Equivalentscash;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory Inventory in the ordinary course Ordinary Course of businessBusiness;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including not useful in such Person’s business and is otherwise in the provision Ordinary Course of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiesBusiness;
(ie) is a sale or disposition of property equipment or other assets, to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement property, equipment or assets or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course Ordinary Course of business Business and in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly otherwise permitted by Section 10.05 an abandonment, failure to renew, or 10.06other disposition in the Ordinary Course of Business of any IP Rights that are not material to the conduct of the business of any Loan Party or any Subsidiary of such Loan Party;
(g) is otherwise permitted by Section 9.03;
(ih) is by any Credit Loan Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Loan Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(j) is by any Subsidiary that is not a Loan Party to any Loan Party or any other Subsidiary that is not a Loan Party;
(k) is a Disposition of cash and Cash Equivalents, in each case, in a manner not prohibited by the other terms of this Agreement and in the Ordinary Course of Business;
(l) is a Disposition of accounts receivable in the Ordinary Course of Business (including to insurers which have provided insurance as to the collection thereof and any discount or forgiveness thereof) or in connection with the collection or compromise thereof;
(m) is (i) any Disposition or termination of leases any lease, license, sublease or subleases sublicense in the ordinary course Ordinary Course of business; (ii) the expiration of any option agreement in respect of real or personal propertyBusiness, or (iiiii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course Ordinary Course of business; andBusiness;
(xn) other Dispositions by is a Disposition of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; providedsimilar proceeding);
(o) is (i) licensing, that, notwithstanding the foregoingsublicensing and cross-licensing arrangements, in no event shall each case, solely to the extent provided on a non-exclusive basis, involving any Credit technology or other IP Rights of any Borrower or any Subsidiary thereof in the Ordinary Course of Business, (ii) the licensing of IP Rights to any Borrower or any other Loan Party, or shall (iii) a Disposition, abandonment, cancellation or lapse of any Credit Party permit technology or other IP Rights (including issuances or registrations, or applications for issuances or registrations, of any IP Rights), which IP Rights, in the good faith determination of its Subsidiaries tothe Administrative Borrower, directly are not material to the conduct of the business of the Borrowers and their respective Subsidiaries, when taken as a whole, or indirectlyare no longer economical to maintain;
(p) is a lease, sublease, license or sublicense of assets (iother than technology and other IP Rights) file entered into in the Ordinary Course of Business;
(q) is a certificate of division, adopt a plan of division or otherwise take any action Disposition consummated in connection with the Transactions to the extent necessary to effectuate a division pursuant to Section 18the Transactions on the Closing Date; or
(r) the sale or discount without recourse of accounts receivable arising in the Ordinary Course of Business in connection with the compromise or collection thereof, in good faith, in an arm’s-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partylength transaction.
Appears in 3 contracts
Samples: Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE)
Permitted Dispositions. Each Credit Loan Party will not, and will not permit any of its SubsidiariesSubsidiaries to, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Loan Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions transactions, unless such Disposition:
(a) is of obsolete or obsolete, worn out or surplus property or property no longer not presently used or useful in its business; or;
(b) is for fair market value and the following conditions are met:
(i) the aggregate fair market value of Dispositions during any fiscal year does not exceed $5,000,000;
(ii) immediately prior to the extent required by Section 5.02(a)(iii)and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(iii) the Borrower has applied applies any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii4.02(a)(ii);; and
(iiiv) no less than seventy-five percent (75%) of the consideration received for such Disposition sale, transfer, lease, contribution or conveyance is received in cash or Cash Equivalentscash;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory Inventory in the ordinary course Ordinary Course of businessBusiness;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including not used or useful in such Person’s business and is otherwise in the provision Ordinary Course of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiesBusiness;
(ie) is a sale or disposition of property equipment or other assets, to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement property, equipment or assets or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course Ordinary Course of business Business and in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, allowing to lapse, failure to renew, or other Disposition of any IP Rights that are not material to the conduct of the business of any Loan Party or any Subsidiary of such Loan Party or are otherwise permitted by Section 10.05 or 10.06not economically practicable to maintain;
(g) is otherwise permitted by Section 9.02, 9.03 or 9.05;
(ih) is by any Credit Loan Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of Loan Party;
(i) is by any Credit Party to any Subsidiary that is not a Credit Loan Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, Loan Party or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Loan Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;; or
(j) the saleare leases, leasesubleases, sub-leaselicenses or sublicenses of property (and, licensewith respect to technology or IP Rights, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid solely on a periodic basis over the term thereof;
(k) the settlement or writenon-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (iexclusive basis) in the ordinary course Ordinary Course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit PartyBusiness.
Appears in 2 contracts
Samples: Loan Agreement (Mimedx Group, Inc.), Loan Agreement (Mimedx Group, Inc.)
Permitted Dispositions. Each The Credit Party Parties will not, and will shall cause each Loan Party not permit to, directly or indirectly, make any of its Subsidiaries, to make a Disposition, Disposition or enter into any agreement to make a any Disposition not permitted under this Section 10.04 unless (unless i) such agreement is conditioned on includes an express condition precedent to closing that the repayment in full of the Obligations and termination of Credit Parties shall have obtained all requisite consents under this Agreement or receipt of consent by (ii) (A) the applicable Lenders), net proceeds of such Credit Party’s Disposition are used solely to repay the Obligations or Senior Secured Notes, and (B) such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such DispositionDisposition is made at the fair market value, except:
(a) is Dispositions of obsolete or worn out property property, whether now owned or property no longer used or useful hereafter acquired, in its the ordinary course of business; or;
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory in the ordinary course of business;
(dc) is the leasing, as lessor, subleasing or licensing Dispositions of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(i) is a sale or disposition of property equipment to the extent that (i) such property equipment is exchanged for credit against the purchase price of similar replacement property, equipment or (ii) the proceeds of such Dispositions Disposition are reasonably promptly applied to the purchase price of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii;
(d) or (ii) is the contemporaneous exchange, in the ordinary course of business, Dispositions of property for property of a like kind, by any Loan Party to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchangedany other Loan Party;
(e) Dispositions permitted by Section 7.04; and
(f) is expressly Dispositions by the Borrower and Loan Parties not otherwise permitted by under this Section 10.05 or 10.06;
(g) is by 7.05; provided that (i) any Credit Party at the time of such Disposition, no Default shall exist or would result from such Disposition and (other than Holdingsii) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount book value of assets all property Disposed of in reliance on this clause (f) in any fiscal year shall not exceed $15,000,000; provided, however, that may be sold or otherwise disposed of by any Credit Party Disposition pursuant to any Subsidiary that is not a Credit Party clauses (xa) through (f) shall be for fair market value and (y) value. For purposes of this Section 7.06 “fair market value” shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent be conclusively evidenced by approval of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted such Disposition by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors of the Person disposing such Property or equivalent governing body of such Subsidiary;
(n) Dispositions constituting by a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom Responsible Officer pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” authority delegated to be determined such Responsible Officer by the Borrower in the exercise board of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate directors of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as Person disposing such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party.Property
Appears in 2 contracts
Samples: Credit Agreement (Marina District Development Company, LLC), Credit Agreement (Boyd Gaming Corp)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other PersonSubsidiary’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition::
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or, so long as, unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the Net Cash Proceeds thereof are applied in accordance with Section 4.02(a)(iii);
(c) is for fair market value and the following conditions are met::
(i) to (A) the extent required by Section 5.02(a)(iii)aggregate amount of Dispositions during any fiscal year shall not exceed $2,500,000, (B) the Borrower has applied Disposition is of a Non-Core Asset or (C) the Disposition is of the Capital Stock, IP Rights or any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)other assets of Resurgent;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) Borrowers apply any Net Cash Proceeds arising therefrom pursuant to Section 4.02(a)(ii);
(iv) no less than 80.00% of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash; and
(v) unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(d) is a sale of inventory Inventory (as defined in the UCC) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or 4.02(a)(ii);
(iif) is the contemporaneous exchangean abandonment, failure to renew, or other disposition in the ordinary course of business, business of any intellectual property for property of a like kind, that is not material to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value conduct of the property exchanged;business of any Credit Party or any Subsidiary of such Credit Party;
(fg) is expressly otherwise permitted by Section 10.05 9.03, 9.05(d) or 10.06;9.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedParent, (ii) any Subsidiary of a Credit Party (other than the a Borrower) to any Credit Party, other than Holdings, Party or (iii) any Subsidiary that itself is not a Credit Party (other than a Borrower) to any other Subsidiary that itself is not a another Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;;
(i) consists of the granting of Permitted Liens;
(j) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive leasing or licensing of non-material Intellectual Property (pursuant to third Persons leases or licenses entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire personal property in the ordinary course of business;
(m) consists of a disposition of owned Real Property (other than the Maryland Mortgaged Property) to effectuate a sale-leaseback transaction permitted by Section 9.09; and
(n) is a disposition of owned or leased Real Property to a Governmental Authority that results from a condemnation, so long as such Disposition resulting from provided that the exercise of such option would otherwise be permitted under proceeds thereof are applied in accordance with this Section 10.04Agreement; and;
(ro) the surrender or waiver of contractual rights or the settlementis a sale, release or surrender of contracttransfer, tort or other litigation claims in disposition of the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures Phoenix Assets. Notwithstanding anything to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of this Section 9.04, except with respect to any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal propertysale, transfer, or (iii) any surrender or waiver other disposition of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingPhoenix Assets, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of Collateral Agent pursuant to the Credit Party permit Documents) any of its Subsidiaries torights under or in respect of any accounts receivable, directly Collections or indirectly, (i) file a certificate of division, adopt a plan of division proceeds arising thereunder or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or thereto other entitythan as permitted under clause (c)(i)(B) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party.above.
Appears in 2 contracts
Samples: Credit Agreement (Goodness Growth Holdings, Inc.), Credit Agreement (Goodness Growth Holdings, Inc.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to No Company shall make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:transactions, except for the following (collectively, the "Permitted Dispositions"):
(a) Dispositions in the ordinary course of its business and is of obsolete or worn out property or property no longer used or useful in its business; or
(b) is Dispositions for fair market value and the following conditions are met:
value; provided, that (i) the aggregate fair market value, as well as the aggregate book value, of all such asset sales do not exceed $100,000 in any fiscal year or $500,000 in the aggregate during the term of this Agreement; (ii) immediately prior to the extent required by Section 5.02(a)(iii)and immediately after giving effect to such Disposition, no Default or Event of Default has occurred and is continuing or would result therefrom; (iii) the Borrower has applied any Net Disposition Proceeds proceeds arising therefrom pursuant to Section 5.02(a)(iii);
2.06; and (iiiv) no less than seventy-five eighty percent (7580%) of the consideration received for such Disposition sale, transfer, lease, contribution or conveyance is received in cash or Cash Equivalentscash;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale Dispositions of inventory Inventory in the ordinary course of business;
(d) is the leasingDispositions constituting leases, as lessor, subleasing with respect to property no longer used or licensing useful in such Person's business and otherwise in the ordinary course of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiesbusiness;
(ie) is a sale or disposition Dispositions of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged2.06;
(f) is expressly Dispositions otherwise permitted by Section 10.05 or 10.066.03;
(g) is Dispositions by (i) any Credit Party (other than Holdings) or Subsidiary thereof Company to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedBorrower or, (ii) any Subsidiary of a Credit Party Company (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations Dispositions of any intercompany Indebtedness among the Credit Partiesreal property to a Governmental Authority that results from a condemnation;
(i) is (i) Dispositions with respect to the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire intellectual property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;; or
(rj) the surrender or waiver Dispositions of contractual rights or the settlementintellectual property assets, release or surrender of contractprovided, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination immediately prior to and immediately after giving effect to such Disposition, no Default or no Event of leases Default has occurred and is continuing or subleases in the ordinary course of business; would result therefrom, and (ii) such intellectual property assets (A) have not produced any revenue during the expiration of any option agreement in respect of real or personal property, or immediately preceding twelve (iii12) any surrender or waiver of contractual rights or month period and (B) are neither necessary nor material to the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 business of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit PartyParties.
Appears in 2 contracts
Samples: Loan Agreement (Galaxy Gaming, Inc.), Loan Agreement (Galaxy Gaming, Inc.)
Permitted Dispositions. Each Credit Party None of the Borrower or any of the Subsidiaries will not, and will not permit Dispose of any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable accounts receivable and Capital Stock Securities of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
Disposition (ai) is inventory, and non-exclusive licenses of obsolete Intellectual Property in connection therewith, or obsolete, damaged, worn out or surplus property or property (including fixed assets no longer used or useful in its business; or
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(i) is a sale or disposition of property to at the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds time of such Dispositions are reasonably promptly applied to the purchase price Disposition) Disposed of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of its business, (ii) is a transaction permitted by Section 8.7, (iii) is a license for the transfer, abandonment, lapse or other disposition use of the Intellectual Property that is, in of the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintainBorrower, or used or useful in its businessany of the Subsidiaries, in each caseinstance that is approved by Borrower’s (or such Subsidiary’s) Board of Directors and which could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory, in including but not limited to field of use, and that may be exclusive as to territory only as to discrete geographical areas outside of the ordinary course United States, (iv) is pursuant to the definition of businessPermitted Joint Venture, or (iiiv) the expiration of Intellectual Property (A) is on fair market value terms in accordance with its maximum statutory term;
(j) the sale, lease, suban arms-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, length transaction; provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any the aggregate cumulative amount of its Subsidiaries to, directly or indirectlycash and noncash consideration payable in connection with Dispositions exceed $3,000,000, (iB) file not less than 75% of the aggregate sales price from any one such Disposition shall be paid in cash at the closing of such Disposition or within 30 days thereafter, (C) immediately prior to and immediately after giving effect to any such Disposition, there does not exist a Default, and (D) in connection with any Disposition permitted by this clause (vi) where the cash and noncash consideration (whether in one or a series of transactions) exceeds $100,000, an Authorized Officer of the Borrower
delivers a certificate to the Lender to the effect that each of division, adopt a plan clauses (A) through C) of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partythis definition has been satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Natera, Inc.), Credit Agreement (Natera, Inc.)
Permitted Dispositions. Each Credit Party None of the Borrower or any of the Subsidiaries will not, and will not permit Dispose of any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable accounts receivable and Capital Stock Securities of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
Disposition (ai) is inventory, and non-exclusive licenses of obsolete Intellectual Property in connection therewith, or obsolete, damaged, worn out or surplus property or property (including fixed assets no longer used or useful in its business; or
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(i) is a sale or disposition of property to at the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds time of such Dispositions are reasonably promptly applied to the purchase price Disposition) Disposed of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of its business, (ii) is a transaction permitted by Section 8.7, (iii) is a license for the transfer, abandonment, lapse or other disposition use of the Intellectual Property that is, in of the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintainBorrower, or used or useful in its businessany of the Subsidiaries, in each caseinstance that is approved by Borrower’s (or such Subsidiary’s) Board of Directors and which could not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory, in including but not limited to field of use, and that may be exclusive as to territory only as to discrete geographical areas outside of the ordinary course United States, (iv) is pursuant to the definition of businessPermitted Joint Venture, or (iiiv) the expiration of Intellectual Property (A) is on fair market value terms in accordance with its maximum statutory term;
(j) the sale, lease, suban arms-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, length transaction; provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any the aggregate cumulative amount of its Subsidiaries to, directly or indirectlycash and noncash consideration payable in connection with Dispositions exceed $[*], (iB) file not less than [*]% of the aggregate sales price from any one such Disposition shall be paid in cash at the closing of such Disposition or within 30 days thereafter, (C) immediately prior to and immediately after giving effect to any such Disposition, there does not exist a Default, and (D) in connection with any Disposition permitted by this clause (vi) where the cash and noncash consideration (whether in one or a series of transactions) exceeds $[*], an Authorized Officer of the Borrower [*] CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION. delivers a certificate to the Lender to the effect that each of division, adopt a plan clauses (A) through C) of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partythis definition has been satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Natera, Inc.), Credit Agreement (Natera, Inc.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its SubsidiariesSubsidiaries (other than any Excluded TerrAscend Subsidiary) to, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the Net Cash Proceeds thereof are applied in accordance with this Agreement;
(c) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), aggregate amount of Dispositions during any fiscal year shall not exceed $500,000 and the Borrower has applied amount of any Net single Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)shall not exceed $500,000;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) Borrowers apply any Net Cash Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) no less than 80.00% of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(d) is a sale of inventory Inventory (as defined in the UCC) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, 9.05(d) or 10.069.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedWDB Holding, (ii) any Subsidiary of a Credit Party (other than the a Borrower) to any Credit Party, Party (other than Holdings, Parent) or (iii) any Subsidiary that itself is not a Credit Party to any another Credit Party (other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Partiesthan Parent);
(i) consists of the granting of Permitted Liens;
(j) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive leasing or licensing of non-material Intellectual Property (pursuant to third Persons leases or licenses entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse of real or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members [intentionally omitted]consists of the board of directors or equivalent governing body of such SubsidiaryCookies Transaction;
(n) Dispositions constituting is a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting disposition of or subsequent Real Property to a total loss or constructive total loss or property, in each caseGovernmental Authority that results from a condemnation, provided that to the extent required by Section 5.02(a)(vii), the Borrower has proceeds thereof are applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);in accordance with this Agreement; or
(o) sales consists of non-core assets (“non-core assets” to be determined by the Borrower in the exercise issuance of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales Capital Stock of real property acquired Parent in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing an Excluded Issuance. Notwithstanding anything to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of Collateral Agent pursuant to the Credit Party permit Documents) any of its Subsidiaries to, directly rights under or indirectly, (i) file a certificate in respect of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (Material Contract or any analogous action taken pursuant to Applicable Law accounts receivable, Collections or proceeds arising thereunder or with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partythereto.
Appears in 2 contracts
Samples: Credit Agreement and Security Agreements (TerrAscend Corp.), Credit Agreement and Security Agreements (TerrAscend Corp.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings; or
(c) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), aggregate amount of Dispositions during any fiscal year shall not exceed $1,000,000 and the Borrower has applied amount of any Net single Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)shall not exceed $250,000;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) the Borrower applies any Net Disposition Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) no less than eighty percent (80%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(d) is a sale of inventory Inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, Section 9.05(d) or 10.06Section 9.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedBorrower, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Credit Party (other than the Borrower) to another Credit Party, or (iv) by any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive licensing of non-material Intellectual Property leasing (pursuant to third Persons leases entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition licensing of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable real or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other is a disposition of Real Property to a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;Governmental Authority that results from a condemnation; or
(n) Dispositions constituting is a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting disposition of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined Transferred Receivables for cash by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing Citibank pursuant to the Administrative Agent within ninety (90) days Citibank Agreement consistent with past practice, provided that, all payments and other amounts payable by Citibank in respect of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as each such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including disposition are remitted directly by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures Citibank to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties Vodafone Euro Collection Account in accordance with Section 4.06 and the Citibank Consent and Acknowledgment. Notwithstanding anything to the contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any Credit Party permit any otherwise dispose of its Subsidiaries to, directly or indirectly, (other than in connection with (i) file the grant of a certificate Lien in favor of division, adopt a plan of division or otherwise take any action to effectuate a division the Collateral Agent pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division Documents or (ii) make the sale of Transferred Receivables for cash by the Borrower to Citibank consistent with past practice pursuant to the Citibank Agreement) any Dispositions of its rights under or in respect of any material Intellectual Property Material Contract (including without limitation, the Vodafone Agreement or the Citibank Agreement) or any accounts receivable, Collections or proceeds arising thereunder or with respect thereto. The Collateral Agent and the Lenders hereby agree that the security interest of any Credit Party the Collateral Agent in a Transferred Receivable proposed to any Person that is not a Credit Partybe sold by the Borrower to Citibank under the Citibank Agreement shall be deemed to be automatically released upon Citibank committing to purchase such Transferred Receivable in accordance with the terms of the Citibank Agreement.
Appears in 1 contract
Samples: Credit Agreement (PARETEUM Corp)
Permitted Dispositions. Each Credit Party The Borrower will not, and will not permit any of its SubsidiariesRestricted Subsidiaries to, to make a Disposition, or enter into Dispose of any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s Borrower's or such other Person’s Restricted Subsidiaries' assets (including Accounts Receivable accounts receivable and Capital Stock of Restricted Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:unless: 81
(a) such Disposition is of inventory or obsolete or worn out property or property no longer used or useful equipment Disposed of in the ordinary course of its business; or;
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) of equipment, together with any non-exclusive license of intellectual property related to the use and operation of such Dispositions shall not exceed $5,000,000 equipment, Disposed of in the aggregate since the Closing Date; and
(iv) no Default or Event ordinary course of Default shall have occurred and be continuing or would result from the Disposition thereof,business;
(c) such Disposition is a sale of inventory accounts receivables in connection with the collection or compromise of such receivables in the ordinary course of business;
(d) such Disposition is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiespermitted by Section 7.2.10;
(ie) is a sale or disposition of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange Disposition is of a fair market value equal to or greater than the fair market value unused equipment Disposed of the property exchanged;
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(mf) to the extent required by Applicable Law, the sale or other disposition such Disposition is a swap/exchange of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Restricted Subsidiaries for similar assets (although not necessarily serving the same geographical area), provided that (i) the net book value of the assets so Disposed by the Borrower and its Restricted Subsidiaries in any transaction or series of related transactions does not exceed $40,000,000 over the term of this Agreement, (ii) any cash received by the Borrower and its Restricted Subsidiaries in connection with such swap/exchange is applied in accordance with the terms of clause (f) of Section 3.1.1, (iii) any cash paid (or Indebtedness assumed) by the Borrower or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements its Restricted Subsidiaries in connection with such swap/exchange shall reduce dollar-for-dollar the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties amount set forth in the relevant joint venture arrangements and/or similar binding arrangements;
clause (ug)(iii) below and (iv) the sale or issuance fair market value of any Subsidiary’s Capital Stock the consideration to be received by the Borrower or a Credit Party or any applicable Restricted Subsidiary that is shall be substantially equivalent to the direct parent fair market value of such Subsidiary;
(v) [reserved];the assets to be Disposed; or
(i) termination such Disposition is for not less than the fair market value of leases or subleases in the ordinary course of business; assets to be Disposed, (ii) the expiration consideration received by the Borrower or applicable Restricted Subsidiary consists of any option agreement in respect of real or personal property, or at least 75% cash and (iii) any surrender or waiver the net book value of contractual rights or such assets, together with the settlementnet book value of all other assets Disposed of pursuant to this clause (g), release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount does not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding 20,000,000 over the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any term of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partythis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Permitted Dispositions. Each Credit Loan Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Loan Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions transactions, unless such DispositionDisposition either:
(a) is in the ordinary course of obsolete or its business and is of obsolete, worn out or surplus property or property no longer not presently used or useful in its business; or;
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied aggregate amount of Dispositions of Collateral during any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)fiscal year does not exceed $20,000,000;
(ii) no less than seventy-five percent immediately prior to and immediately after giving effect to such Disposition, (75%x) the Borrower shall be in compliance with the covenant set forth in Section 9.13(c) (for purposes of the consideration received for this Section 9.04(b)(ii), tested immediately prior to and after giving effect to such Disposition is received in cash or Cash Equivalents;
Disposition) and (iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(ivy) no Default or Event of Default shall have occurred and be continuing or would result from therefrom;
(iii) the Borrower applies any Net Disposition thereof,Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) the entirety of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(c) is a sale of inventory Inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including not presently used or useful in such Person’s business and is otherwise in the provision ordinary course of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiesbusiness;
(ie) is a sale or disposition of property equipment or other assets, to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement property, equipment or assets or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business and in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly otherwise permitted by Section 10.05 an abandonment, failure to renew, or 10.06other disposition in the ordinary course of business of any IP Rights that are not material to the conduct of the business of any Loan Party;
(g) is otherwise permitted by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit PartySection 9.03;
(h) cancellations of is by any intercompany Indebtedness among the Credit PartiesLoan Party to any Loan Party;
(i) is the Disposition of any assets of PHI Air Medical, L.L.C., and immediately prior to and immediately after giving effect to such Disposition, the Borrower shall be in compliance with the covenant set forth in Section 9.13(c) (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory termextent then applicable);
(j) is a sale or disposition pursuant to the sale, lease, sub-lease, license, sub-license or consignment terms of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;Disclosed Existing Sublease; or
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or is a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, the replacement of any Parts or Engine in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate accordance with the terms of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit PartyAircraft Collateral Mortgage.
Appears in 1 contract
Samples: Loan Agreement (Phi Inc)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other PersonSubsidiary’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or, so long as, unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the Net Cash Proceeds thereof are applied in accordance with Section 4.02(a)(iii);
(c) is for fair market value and the following conditions are met:
(i) to (A) the extent required by Section 5.02(a)(iii)aggregate amount of Dispositions during any fiscal year shall not exceed $2,500,000, (B) the Borrower has applied Disposition is of a Non-Core Asset or (C) the Disposition is of the Capital Stock, IP Rights or any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)other assets of Resurgent;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) Borrowers apply any Net Cash Proceeds arising therefrom pursuant to Section 4.02(a)(ii);
(iv) no less than 80.00% of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash; and
(v) unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(d) is a sale of inventory Inventory (as defined in the UCC) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, 9.05(d) or 10.069.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedParent, (ii) any Subsidiary of a Credit Party (other than the a Borrower) to any Credit Party, other than Holdings, Party or (iii) any Subsidiary that itself is not a Credit Party (other than a Borrower) to any other Subsidiary that itself is not a another Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive leasing or licensing of non-material Intellectual Property (pursuant to third Persons leases or licenses entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse of real or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other consists of a disposition of owned Real Property (other than the Maryland Mortgaged Property) to effectuate a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;sale-leaseback transaction permitted by Section 9.09; and
(n) Dispositions constituting is a taking by condemnation disposition of owned or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent leased Real Property to a total loss or constructive total loss or property, in each caseGovernmental Authority that results from a condemnation, provided that the proceeds thereof are applied in accordance with this Agreement. Notwithstanding anything to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of Collateral Agent pursuant to the Credit Party permit Documents) any of its Subsidiaries torights under or in respect of any accounts receivable, directly Collections or indirectly, (i) file a certificate of division, adopt a plan of division proceeds arising thereunder or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or thereto other entitythan as permitted under clause (c)(i)(B) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partyabove.
Appears in 1 contract
Samples: Credit Agreement (Vireo Health International, Inc.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:: [***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided, that the proceeds thereof are applied in accordance with this Agreement; or
(c) is for fair market value and the following conditions are met:
(i) to with the extent required by Section 5.02(a)(iii)exception of the United Telecom Disposition, the Borrower has applied aggregate amount of Dispositions during any Net fiscal year shall not exceed [***] and the amount of any single Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)shall not exceed [***];
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) the Borrower applies any Net Disposition Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) no less than [***]percent ([***]%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(d) is a sale of inventory Inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, Section 9.05(d) or 10.06Section 9.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedBorrower, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Credit Party (other than the Borrower) to another Credit Party, or (iv) by any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof; [***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(il) consists of the non-exclusive licensing of non-material Intellectual Property leasing (pursuant to third Persons leases entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition licensing of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable real or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other is a disposition of Real Property to a nominal amount of Capital Stock Governmental Authority that results from a condemnation; provided, that the proceeds thereof are applied in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;accordance with this Agreement; or
(n) Dispositions constituting is a taking disposition of Transferred Receivables for cash by condemnation Borrower or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent Pareteum Europe to a total loss or constructive total loss or property, in each case, provided that [***]pursuant to the extent required [***]Agreement consistent with past practice, provided, that all payments and other amounts payable by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales [***]in respect of non-core assets (“non-core assets” to be determined each such disposition are remitted directly by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing [***]to the Administrative Agent within ninety (90) days of Pareteum Europe Capital One Account in accordance with the acquisition thereof as being held for sale [***]Consent and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures Acknowledgment. Notwithstanding anything to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with (i) the grant of a Lien in favor of the Collateral Agent pursuant to the Credit Party permit Documents, (ii) the sale of Transferred Receivables in accordance with Section 9.04(n) or (iii) the United Telecom Disposition in accordance with Section 9.04(c)) any of its Subsidiaries torights under or in respect of any Material Contract (including without limitation, directly the [***]Agreement) or indirectlyany accounts receivable, (i) file a certificate of division, adopt a plan of division Collections or otherwise take any action to effectuate a division pursuant to Section 18-217 proceeds arising thereunder or with respect thereto. The Collateral Agent and the Lenders hereby agree that the security interest of the Delaware Limited Liability Company Act (Collateral Agent in a Transferred Receivable proposed to be sold by Borrower or any analogous action taken pursuant Pareteum Europe to Applicable Law [***]under the [***]Agreement shall be deemed to be automatically released upon [***]committing to purchase such Transferred Receivable in accordance with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions terms of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partythe [***]Agreement.
Appears in 1 contract
Samples: Credit Agreement (PARETEUM Corp)
Permitted Dispositions. Each No Credit Party will notshall, and will not no Credit Party shall permit any of its SubsidiariesSubsidiaries to, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable Receivables and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property property, other than any Product, no longer used or useful in its business; or, including, in the case of IP Rights, any Intellectual Property that is not necessary for any business conducted by any Credit Party or any of its Subsidiaries;
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory Inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ic) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(md) to the extent required is otherwise permitted by Applicable LawSections 9.02, the sale 9.03, 9.05, 9.06, or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;9.08.
(ne) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or is a Disposition consisting of or subsequent to a total loss or constructive total loss or the non-exclusive licenses for the use of the property, in each caseother than any Product, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements Credit Parties in the ordinary course of business;
(qf) is a Disposition of cash or Cash Equivalents,
(g) is the unwinding of any grant of an option to purchaseHedge Transaction, lease or acquire property in the ordinary course of business, so long as such or
(h) is a Disposition resulting from the exercise of such option would not otherwise be permitted under by this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party 9.04 in an amount not to exceed $1,000,000 during each 100,000 per fiscal year; , so long as no Event of Default shall have occurred and be continuing after such Disposition, provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, (i) directly or indirectly, issue, sell, assign or otherwise dispose of any Capital Stock of any of its Subsidiaries, except (i1) to qualify directors if required by applicable law or (2) pursuant to clause (d) above or (ii) to file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party).
Appears in 1 contract
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
(a) is of obsolete or worn out property or property no longer used or useful in its business; or
(b) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(e) (i) is a sale or disposition of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Grindr ListCo, Grindr Group or Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Grindr ListCo, Grindr Group or Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Grindr ListCo, Grindr Group or Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Permitted Dispositions. Each Credit Party Xxxx-Xxxxx will not, and will not permit any of its SubsidiariesU.S. Subsidiaries (other than the Insurance Captive) to, to make a Disposition, or enter into Dispose of any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit PartyXxxx-Dixie’s or such other Person’s Subsidiaries’ assets (including Accounts Receivable accounts receivable and Capital Stock Securities of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
(ai) is in the ordinary course of its business and (A) consists of (1) the lease (or sublease) of a portion of any Real Property owned or leased by any Borrower or any Subsidiary or (2) the temporary license (or temporary sublicense) of any patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service xxxx rights, copyrights or other intellectual property rights; provided that such lease (or sublease) or temporary license (or temporary sublicense) shall not interfere with the primary use of such Real Property or intellectual property right, or (B) constitutes Inventory or is, in the reasonable determination of Xxxx-Xxxxx, of obsolete or worn out assets or property or property assets or properties no longer used or useful in its business (it being understood that Dispositions made in connection with the Restructuring Plan or any other restructuring plan approved by the Agent in its discretion shall not be considered to be made in the ordinary course of business; or), (ii) is to a Borrower or any Subsidiary Guarantor, or (iii) is permitted by Section 7.2.10;
(b) is for fair market value to any Person other than an Affiliate or Subsidiary, and the following conditions are met:
(i) the aggregate fair market value, as well as the aggregate book value, of all such asset sales do not exceed $25,000,000 in any Fiscal Year and $75,000,000 in the aggregate for the term of this Agreement; provided that (A) any single asset sold for less than $1,000,000 shall not be treated as usage of either the $25,000,000 or $75,000,000 baskets contained in this clause (b)(i) unless such asset is sold as part of a group of assets for an amount in excess of $5,000,000 in the aggregate, (B) assets sold in connection with Dispositions or facility closings as part of the Restructuring Plan or any other restructuring plan approved by the Agent, in its discretion, up to an aggregate net book value amount not to exceed $75,000,000 in the extent required by Section 5.02(a)(iii), case of assets other than Inventory and $175,000,000 in the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant case of Inventory shall not be treated as usage of either the $25,000,000 or $75,000,000 baskets contained in this clause (b)(i) and (C) Dispositions of assets that are not Borrowing Base Assets listed in Item 7.2.11(b)(i) of the Disclosure Schedule up to Section 5.02(a)(iiian aggregate net book value amount not to exceed $65,000,000 shall not be treated as usage of either the $25,000,000 or $75,000,000 baskets contained in this clause (b)(i);
(ii) immediately prior to and immediately after giving effect to such disposition, no less than seventy-five percent Default shall have occurred or would result therefrom (75%) of the consideration received for such Disposition is received in cash or Cash Equivalentsincluding without limitation under Section 7.2.4);
(iii) any Net Disposition Proceeds have been applied pursuant to clause (b) of Section 3.1.1 to the extent required by the terms thereof;
(iv) all the consideration for such Dispositions shall not exceed $5,000,000 sale, transfer, lease, contribution or conveyance is cash (including cash held in escrow or otherwise subject to a holdback or similar arrangement in support of indemnification made by the disposing Person in connection with the Disposition) or, in the aggregate since case of assets that are not Borrowing Base Assets, assumption of liabilities by the Closing Datepurchaser thereof;
(v) at least 10 Business Days prior to any such Disposition of Borrowing Base Assets having a book value of $10,000,000 or more, Xxxx-Xxxxx has provided the Agent with a pro forma Borrowing Base Certificate which shall be comprised of the most recently delivered Borrowing Base Certificate, adjusted to give pro forma affect to such Disposition as if such Disposition occurred on the last day of the period covered by the most recently delivered Borrowing Base Certificate; and
(ivvi) the Agent have received at least 5 Business Days prior written notice of such Disposition (to the extent a pro forma Borrowing Base Certificate has not previously been provided pursuant to Section 7.2.11(b)(v)) and, at the request of the Agent, any acquisition or purchase agreements or other documents relating to the Disposition have been provided to the Agent.
(c) constitutes a Permitted Sale and Leaseback Transaction;
(d) constitutes a Permitted Lien;
(e) constitutes a rejection of a lease or other executory contract to which Xxxx-Xxxxx or such Subsidiary is a party to the extent such rejection of a lease does not relate to any Eligible Leasehold Property and such rejection is part of the Restructuring Plan or any other restructuring plan approved by the Agent in its discretion, is permitted under, and in accordance with, the Bankruptcy Code where such rejection does not have a reasonable likelihood of having a Material Adverse Effect and will not otherwise adversely affect the right or ability of the Agent or the Lenders to exercise any of their respective rights or remedies with respect to any of the Collateral or reduce the value of the Collateral in any material respect; or
(f) occurs when no Default or Event of Default shall have occurred and be continuing or would result from continuing, and comprises the Disposition thereof,
(c) is a sale of inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(i) is a sale or disposition discount of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement property, all accounts receivable arising in the ordinary course of business in accordance connection with Section 5.02(a)(iii) the compromise or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is expressly otherwise permitted by Section 10.05 or 10.06;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdingscollection thereof; provided that the aggregate amount of assets that may be sold such sale or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) discount shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year without recourse to Xxxx-Xxxxx or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the nonXxxx-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit PartyXxxxx.
Appears in 1 contract
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings; or
(c) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), aggregate amount of Dispositions during any fiscal year shall not exceed $1,000,000 and the Borrower has applied amount of any Net single Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)shall not exceed $250,000;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) the Borrower applies any Net Disposition Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) no less than eighty percent (80%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(d) is a sale of inventory Inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, Section 9.05(d) or 10.06Section 9.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedBorrower, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Credit Party (other than the Borrower) to another Credit Party, or (iv) by any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive licensing of non-material Intellectual Property leasing (pursuant to third Persons leases entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition licensing of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable real or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other is a disposition of Real Property to a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;Governmental Authority that results from a condemnation; or
(n) Dispositions constituting is a taking disposition of Transferred Receivables for cash by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent the Borrower to a total loss or constructive total loss or property, in each caseCitibank pursuant to the Citibank Agreement consistent with past practice, provided that (i) from the Closing Date until the Vodafone/Cititbank Completion Date, all payments and other amounts payable by Citibank in respect of each such disposition are remitted directly by Citibank to the extent required Borrower and, immediately upon receipt by Section 5.02(a)(vii)the Borrower, the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined remitted by the Borrower to the Collateral Agent for deposit in the exercise of its reasonable good faith business judgment) acquired Vodafone Euro Collection Account in accordance with a Permitted Acquisition or other Investment permitted hereunder Section 4.06 and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate from and after the Vodafone/Citibank Completion Date, all payments and other amounts payable by Citibank in respect of the Sponsor or the Borrower and (iii) designated in writing each such disposition are remitted directly by Citibank to the Administrative Agent within ninety (90) days of Vodafone Euro Collection Account in accordance with Section 4.06 and the acquisition thereof as being held for sale Citibank Consent and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures Acknowledgment. Notwithstanding anything to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any Credit Party permit any otherwise dispose of its Subsidiaries to, directly or indirectly, (other than in connection with (i) file the grant of a certificate Lien in favor of division, adopt a plan of division or otherwise take any action to effectuate a division the Collateral Agent pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division Documents or (ii) make the sale of Transferred Receivables for cash by the Borrower to Citibank consistent with past practice pursuant to the Citibank Agreement) any Dispositions of its rights under or in respect of any material Intellectual Property Material Contract (including without limitation, the Vodafone Agreement, the Citibank Agreement or the Iusacell Agreement) or any accounts receivable, Collections or proceeds arising thereunder or with respect thereto. The Collateral Agent and the Lenders hereby agree that the security interest of any Credit Party the Collateral Agent in a Transferred Receivable proposed to any Person that is not a Credit Partybe sold by the Borrower to Citibank under the Citibank Agreement shall be deemed to be automatically released upon Citibank committing to purchase such Transferred Receivable in accordance with the terms of the Citibank Agreement.
Appears in 1 contract
Samples: Credit Agreement (Elephant Talk Communications Corp)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other PersonSubsidiary’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or, so long as, unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the Net Cash Proceeds thereof are applied in accordance with Section 4.02(a)(iii);
(c) is for fair market value and the following conditions are met:
(i) to (A) the extent required by Section 5.02(a)(iii)aggregate amount of Dispositions during any fiscal year shall not exceed $2,500,000, (B) the Borrower has applied Disposition is of a Non-Core Asset or (C) the Disposition is of the Capital Stock, IP Rights or any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)other assets of Resurgent;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) Borrowers apply any Net Cash Proceeds arising therefrom pursuant to
(iv) no less than 80.00% of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash; and
(v) unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(d) is a sale of inventory Inventory (as defined in the UCC) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, 9.05(d) or 10.069.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedParent, (ii) any Subsidiary of a Credit Party (other than the a Borrower) to any Credit Party, other than Holdings, Party or (iii) any Subsidiary that itself is not a Credit Party (other than a Borrower) to any other Subsidiary that itself is not a another Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive leasing or licensing of non-material Intellectual Property (pursuant to third Persons leases or licenses entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse of real or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other consists of a disposition of owned Real Property (other than the Maryland Mortgaged Property) to effectuate a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;sale-leaseback transaction permitted by Section 9.09; and
(n) Dispositions constituting is a taking by condemnation disposition of owned or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent leased Real Property to a total loss or constructive total loss or property, in each caseGovernmental Authority that results from a condemnation, provided that the proceeds thereof are applied in accordance with this Agreement. Notwithstanding anything to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of Collateral Agent pursuant to the Credit Party permit Documents) any of its Subsidiaries torights under or in respect of any accounts receivable, directly Collections or indirectly, (i) file a certificate of division, adopt a plan of division proceeds arising thereunder or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or thereto other entitythan as permitted under clause (c)(i)(B) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partyabove.
Appears in 1 contract
Samples: Credit Agreement
Permitted Dispositions. Each No Credit Party will notshall, and will not no Credit Party shall cause or permit any of its SubsidiariesSubsidiaries to, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Dispositiontransactions, except for:
(a) is Dispositions in the ordinary course of obsolete its business of obsolete, damaged, used or worn worn-out surplus property or property no longer used or useful in its business or economically practicable to maintain in the conduct of business; or;
(b) is Dispositions made for fair market value and value, subject to the satisfaction of the following conditions are met:
conditions: (i) the aggregate fair market value, as well as the aggregate book value, of the assets subject to such Dispositions shall not exceed $500,000 in any fiscal year or $2,500,000 in the aggregate during the term of this Agreement; (ii) immediately prior to and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom; (iii) after giving effect to any such Disposition, the Credit Parties shall be in compliance, on a Pro Forma Basis after giving effect to such Disposition, with the Financial Covenants (recomputed as of, and for the four (4) fiscal quarter period ending on, the last day of the most recent fiscal quarter for which financial statements have been delivered or were required to be delivered pursuant to this Agreement); (iv) the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii); and (v) no less than seventy-five percent (75%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(c) Dispositions of inventory or immaterial assets or intellectual property in the ordinary course of business;
(d) leases, as lessor, of real or personal property no longer used or useful in such Person’s business and otherwise in the ordinary course of business;
(e) Dispositions of assets to the extent required by Section 5.02(a)(iii)that such assets are exchanged for credit against the purchase price of similar replacement assets, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement assets, all in the ordinary course of business, and to the extent the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(ii) no less than seventy-five percent (75%) of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Default shall have occurred and be continuing or would result from the Disposition thereof,
(c) is a sale of inventory in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(i) is a sale or disposition of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement property, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is Dispositions otherwise expressly otherwise permitted by Section 10.05 9.02(j) or 10.06Section 9.03;
(g) Dispositions of property to the Borrower or any of its Subsidiaries; provided that (x) if the transferor in such a transaction is by (i) any a Credit Party (other than Holdings) or Subsidiary thereof to any other Party, then the transferee must be a Credit Party or Subsidiary, other than Holdings; provided that (y) the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for transferee must pay fair market value in exchange for such property and (y) such property shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Partytreated as an Investment and permitted under Section 9.05;
(h) cancellations Dispositions or forgiveness of accounts receivable solely in connection with the collection or compromise thereof (including sales to factors or other third parties) and not as part of any intercompany Indebtedness among the Credit Parties;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons in the ordinary course of business, (ii) the transfer, abandonment, lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its businessfinancing transaction, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory termbusiness and without recourse;
(ji) the saleleases, leasesubleases, subservice agreements, product sales, transfers, licenses or sublicenses (including transfers and non-leaseexclusive licenses and sublicenses of intellectual property), license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in each case in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock that do not interfere in any Subsidiary in order to qualify members material respect with the business of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii)Holdings, the Borrower has or any of its Subsidiaries; 108
(j) Casualty Events, so long as the Borrower shall have applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii)5.02(a)(iv) to the extent required thereby;
(ok) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions Dispositions of Investments in joint ventures or non-wholly owned Subsidiaries of the Borrower solely to the extent required by, or made pursuant to, to customary buy/sell arrangements between between, the joint venturers or similar venture parties set forth in the relevant joint venture arrangements and/or and similar binding arrangements;
(ul) the sale or issuance Dispositions of any Subsidiary’s Capital Stock to Borrower or a Credit Party or non-core assets acquired in connection with any Subsidiary Permitted Acquisition; provided that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination the fair market value of leases such assets shall not exceed ten percent (10%) of the consideration paid in such Permitted Acquisition or subleases in the ordinary course of business; similar Investment, (ii) the expiration of any option agreement in respect of real or personal propertyeach such sale is an arm’s-length transaction, or (iii) both before and after giving effect to any surrender such Disposition, (x) no Default or waiver Event of contractual rights Default shall exist or would result therefrom and (y) the settlementCredit Parties shall be in compliance on a Pro Forma Basis with the Financial Covenants (recomputed as of, release and for the four (4) fiscal quarter period ending on, the last day of the most recent fiscal quarter for which financial statements have been delivered or surrender were required to be delivered pursuant to this Agreement) and (iv) such Net Disposition Proceeds shall be (A) in an amount at least equal to the fair market value of contractual rights or other litigation claims the asset(s) subject to such Disposition and (B) to the extent paid in cash, applied as and to the ordinary course of businessextent required by Section 5.02(a)(iii); and
(xm) other Dispositions by the unwinding of any Credit Party in an amount not Hedging Agreement or derivative instrument permitted pursuant to exceed $1,000,000 during each fiscal yearSection 9.05(m); provided, that, notwithstanding the foregoing, in no event shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) issue, sell, assign or otherwise dispose of any Capital Stock of any of its Subsidiaries, except to another Credit Party (other than Holdings) or (ii) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party).
Appears in 1 contract
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Restricted Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other Person’s assets (including Accounts Receivable accounts receivable and Capital Stock of Restricted Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn out property or property no longer used or useful in its business; or;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the proceeds thereof are applied in accordance with this Agreement;
(c) is for fair market value and the following conditions are met:
(i) to the extent required by Section 5.02(a)(iii), aggregate amount of Dispositions during any fiscal year shall not exceed 5.00% of the Borrower has applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);Total Assets of the Credit Parties.
(ii) immediately prior to and immediately after giving effect to such Disposition, no less than seventy-five percent (75%) Event of the consideration received for such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event of Material Default shall have occurred and be continuing or would result from the Disposition thereof,therefrom;
(ciii) Borrower applies any Net Disposition Proceeds arising therefrom pursuant to Section 4.02(a)(ii); and
(iv) no less than eighty percent (80%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash;
(d) is a sale of inventory Inventory (as defined in the UCC) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment or fixed assets to the extent that such property equipment or fixed asset is exchanged for credit against the purchase price of similar replacement propertyequipment or fixed asset, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment or fixed asset, all in the ordinary course of business and in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged4.02(a)(ii);
(f) is expressly an abandonment, failure to renew, or other Disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party;
(g) is otherwise permitted by Section 10.05 or 10.069.03;
(gh) is by (i) any Credit Party (other than Holdings) or Restricted Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold Restricted Subsidiary or otherwise disposed of (ii) by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed, (ii) any Subsidiary of a Credit Party (other than the Borrower) to any Credit Party, other than Holdings, or (iii) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable (ior a promissory note evidencing accounts receivable or the settlement thereof) arising in the non-exclusive licensing ordinary course of non-material Intellectual Property business in connection with the collection thereof;
(l) consists of the leasing (pursuant to third Persons leases entered into in the ordinary course of business) or licensing of real or personal property in the ordinary course of business;
(m) consists of a surrender or waiver of contract rights or a settlement, (ii) the transferrelease or surrender of contract, abandonment, lapse tort or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its businessclaims, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or consists of a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii), the Borrower has applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businesses;
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venturers or similar venture parties set forth in the relevant joint venture arrangements and/or and similar binding arrangementsagreements and the transfer of assets as part of the consideration for Investment in a joint venture permitted under Section 9.05;
(uo) consists of Dispositions made in connection with the sale or issuance unwinding of any Subsidiary’s Capital Stock to Borrower Hedging Obligations permitted under Section 9.11 or a Credit Party or any Subsidiary that is the direct parent of such Subsidiarysale and leaseback transaction permitted under Section 9.08;
(vp) [reserved];
(i) termination consists of leases or subleases charitable donations made in cash and in the ordinary course of business; , to the extent such assets are not material to the ability of the Credit Parties to conduct the Business;
(iiq) is a disposition of Real Property to a Governmental Authority that results from a condemnation, provided that (other than with respect to Real Property with a first-lien mortgage in favor of a third party) the expiration proceeds thereof are applied in accordance with this Agreement;
(r) the sale of any option agreement in respect of real the Closing Date Joint Ventures;
(s) licenses, sublicenses, leases or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims subleases granted to third parties in the ordinary course of businessbusiness (but limited, in the case of licenses of intellectual property, to non-exclusive licenses) so long as such licenses, sublicenses, leases or subleases (i) do not interfere with the business of the Credit Parties and (ii) are not materially adverse to the interests of the Secured Parties; and
(xt) other Dispositions by any Credit Party is a disposition of Real Property with a first-lien mortgage in an amount not favor of a third party. Notwithstanding anything to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingcontrary set forth in this Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of the Collateral Agent pursuant to the Credit Party permit Documents and Liens described in Section 9.02(v)) any of its Subsidiaries to, directly rights under or indirectly, (i) file a certificate in respect of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (Material Contract or any analogous action taken pursuant to Applicable Law accounts receivable, Collections or proceeds arising thereunder or with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partythereto.
Appears in 1 contract
Samples: Credit Agreement
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders)Disposition, of such Credit Party’s or such other PersonSubsidiary’s assets (including Accounts Receivable accounts receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is in the ordinary course of obsolete its business and is of obsolete, surplus or worn worn-out property or property no longer used or useful in its business; or, so long as, unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(b) is made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain proceedings, provided that the Net Cash Proceeds thereof are applied in accordance with Section 4.02(a)(iii);
(c) is for fair market value and the following conditions are met:
(i) to (A) the extent required by Section 5.02(a)(iii)aggregate amount of Dispositions during any fiscal year shall not exceed $2,500,000, (B) the Borrower has applied Disposition is of XAAS Agro, Inc., a Puerto Rico corporation, or (C) the Disposition is of the Capital Stock, IP Rights or any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii)other assets of Resurgent;
(ii) no less than seventy-five percent (75%) of the consideration received for immediately prior to and immediately after giving effect to such Disposition is received in cash or Cash Equivalents;
(iii) such Dispositions shall not exceed $5,000,000 in the aggregate since the Closing Date; and
(iv) Disposition, no Default or Event of Default shall have occurred and be continuing or would result from therefrom;
(iii) excluding the Disposition thereof,of XAAS Agro, Inc., no less than 80.00% of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash; and
(civ) unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time of such Disposition;
(d) is a sale of inventory Inventory (as defined in the UCC) in the ordinary course of business;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including the provision of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilities;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged;
(f) is expressly an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is otherwise permitted by Section 10.05 9.03, 9.05(d) or 10.069.05(h);
(gh) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 in any fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedParent, (ii) any Subsidiary of a Credit Party (other than the a Borrower) to any Credit Party, other than Holdings, Party or (iii) any Subsidiary that itself is not a Credit Party (other than a Borrower) to any other Subsidiary that itself is not a another Credit Party;
(hi) cancellations consists of any intercompany Indebtedness among the Credit Partiesgranting of Permitted Liens;
(ij) consists of a Disposition of cash or Cash Equivalents;
(k) is a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(il) consists of the non-exclusive leasing or licensing of non-material Intellectual Property (pursuant to third Persons leases or licenses entered into in the ordinary course of business, (ii) the transfer, abandonment, lapse of real or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not material to the business and no longer economically practicable or commercially desirable to maintain, or used or useful in its business, in each case, in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other consists of a disposition of owned Real Property (other than the Maryland Mortgaged Property) to effectuate a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiarysale-leaseback transaction permitted by Section 9.09;
(n) Dispositions constituting is a taking by condemnation disposition of owned or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent leased Real Property to a total loss or constructive total loss or property, in each caseGovernmental Authority that results from a condemnation, provided that to the extent required by Section 5.02(a)(vii), the Borrower has proceeds thereof are applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii)in accordance with this Agreement;
(o) sales of non-core assets (“non-core assets” to be determined by as provided in Section 8.17, the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired in connection with a Permitted Acquisition, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of the acquisition thereof as being held for sale and not for the continued operation of the Borrower or any of its Subsidiaries or any of their respective businessesNew York Disposition;
(p) unwinding of Hedging Agreements or cash management agreements as provided in Section 8.18, the ordinary course of business;Minnesota Disposition; and
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) the surrender or waiver of contractual rights or the settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures [reserved]. Notwithstanding anything to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties contrary set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such Subsidiary;
(v) [reserved];
(i) termination of leases or subleases in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; and
(x) other Dispositions by any Credit Party in an amount not to exceed $1,000,000 during each fiscal year; provided, that, notwithstanding the foregoingthis Section 9.04, in no event shall any Credit PartyParty sell, transfer, assign or shall any otherwise dispose of (other than in connection with the grant of a Lien in favor of Collateral Agent pursuant to the Credit Party permit Documents) any of its Subsidiaries torights under or in respect of any accounts receivable, directly Collections or indirectly, (i) file a certificate of division, adopt a plan of division proceeds arising thereunder or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or thereto other entitythan as permitted under clause (c)(i)(B) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Partyabove.
Appears in 1 contract
Samples: Credit Agreement (Vireo Growth Inc.)
Permitted Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement to make a Disposition not permitted under this Section 10.04 (unless such agreement is conditioned on the repayment in full of the Obligations and termination of this Agreement or receipt of consent by the applicable Lenders), of such Credit Party’s or such other Person’s assets (including Accounts Receivable and Capital Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such Disposition:
(a) is in the ordinary course of its business and is of surplus, obsolete or worn out property or property no longer used or useful in its business; or;
(b) is for fair market value (as determined by the Administrative Borrower in good faith) and the following conditions are met:
(i) immediately prior to and immediately after giving effect to such Disposition, no Specified Event of Default shall have occurred and be continuing or would immediately thereafter result therefrom;
(ii) to the extent required by Section 5.02(a)(iii), the Borrower has Borrowers have applied any Net Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);; and
(iiiii) no less than seventy-five percent (75%) of the consideration received for such Disposition sale, transfer, lease, contribution or conveyance is received in cash or Cash Equivalents;
; provided, that the total amount of non-cash consideration deemed to be “cash” under this clause (iii) such Dispositions shall not exceed the greater of $5,000,000 in the aggregate since the Closing Date; and
(iv) no Default or Event 15,000,000 and 15% of Default shall have occurred and be continuing or would result from the Disposition thereof,Pro Forma Consolidated Adjusted EBITDA at any time;
(c) is a sale of inventory in the ordinary course of businessbusiness or of immaterial assets;
(d) is the leasing, as lessor, subleasing or licensing of real or personal property (including no longer used or useful in such Person’s business and otherwise in the provision ordinary course of software under an open source license) or in each case termination thereof which (A) do not materially interfere with the business of the Borrower and its Subsidiaries or (B) relate to closed facilitiesbusiness;
(ie) is a sale or disposition of property equipment to the extent that such property equipment is exchanged for credit against the purchase price of similar replacement propertyequipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement propertyequipment, all in the ordinary course of business in accordance with Section 5.02(a)(iii) or (ii) is the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that property received in such exchange is of a fair market value equal to or greater than the fair market value of the property exchanged);
(f) is expressly otherwise permitted by Section 10.05 or 10.0610.05;
(g) is by (i) any Credit Party (other than Holdings) or Subsidiary thereof to any other Credit Party or Subsidiary, other than Holdings; provided provided, that the aggregate amount of assets that may be sold or otherwise disposed of by any Credit Party to any Subsidiary that is not a Credit Party (x) shall be for fair market value and (y) shall not exceed $1,000,000 7,500,000 in any fiscal year or otherwise with $15,000,000 in the prior written consent aggregate from and after the Closing Date; provided, further that (x) no Credit Party shall transfer any Intellectual Property that is material to the business of any Borrower and its Subsidiaries (“Material IP”) and (y) no Credit Party may become a non-Credit Party if such subsidiary owns any Material IP at the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayedtime of such designation, (ii) any Guarantor (other than Holdings) to any Credit Party, other than Holdings, (iii) any Subsidiary of a Credit Party (other than the a Borrower) to any Credit Party, other than Holdings; provided, that any such sales or other dispositions shall be for fair market value or less than fair market value, or (iiiiv) any Subsidiary that itself is not a Credit Party to any other Subsidiary that itself is not a Credit Party;
(h) cancellations of any intercompany Indebtedness among the Credit Parties, other than a cancellation of any such Indebtedness owing by Holdings to a Borrower;
(i) is (i) the non-exclusive licensing of non-material Intellectual Property to third Persons (including contributing source code to the public domain and licensing it pursuant to an open source software license), in each case in the ordinary course of business, (ii) or the sale, transfer, abandonment, allowance to lapse or other disposition of Intellectual Property that is, in the applicable Credit Party’s reasonable business judgment, not either (i) no longer material to the business and business, (ii) no longer economically practicable or commercially desirable to maintain, or used or useful in its businessbusiness or (iii) no longer economically practicable to maintain, in each casecase of clauses (i)-(iii), in the ordinary course of business, or (iii) the expiration of Intellectual Property in accordance with its maximum statutory term;
(j) the sale, lease, sub-lease, license, sub-license or consignment of personal property (other than Intellectual Property) of the Credit Parties or their Subsidiaries in the ordinary course of business consistent with past practice and leases or subleases of real property permitted by clause (a) for which rentals are paid on a periodic basis over the term thereof;
(k) the settlement or write-off of Accounts Receivable or sale, discount or compromise of overdue Accounts Receivable for collection (i) in the ordinary course of business consistent with past practice and (ii) with respect to Accounts Receivable acquired with a Permitted Acquisition or IP Acquisition, consistent with prudent business practice;
(l) use or exchange of cash and Cash Equivalents in the ordinary course of business;
(m) to the extent required by Applicable Law, the sale or other disposition of a nominal amount of Capital Stock in any Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Subsidiary;
(n) Dispositions constituting a taking by condemnation or eminent domain or transfer in lieu thereof, or a Disposition consisting of or subsequent to a total loss or constructive total loss or property, in each case, provided that to the extent required by Section 5.02(a)(vii5.02(a)(iv), the Borrower has Borrowers have applied any Net Casualty Proceeds arising therefrom pursuant to Section 5.02(a)(vii5.02(a)(iv);
(o) sales of non-core assets (“non-core assets” to be determined by the Borrower in the exercise of its reasonable good faith business judgment) acquired with a Permitted Acquisition or other Investment permitted hereunder and sales of real property acquired IP Acquisition which are not used or useful or are duplicative in connection with a Permitted Acquisitionthe business, in each case, shall be (i) sold entirely for cash consideration and for fair market value, (ii) sold to a non-Affiliate of the Sponsor or the Borrower and (iii) designated in writing to the Administrative Agent within ninety (90) days of extent required by Section 5.02(a)(iii), the acquisition thereof as being held for sale and not for the continued operation of the Borrower or Borrowers have applied any of its Subsidiaries or any of their respective businessesNet Disposition Proceeds arising therefrom pursuant to Section 5.02(a)(iii);
(p) unwinding of Hedging Agreements or cash management agreements in the ordinary course of business;
(q) any grant of an option to purchase, lease or acquire property in the ordinary course of business, so long as such Disposition resulting from the exercise of such option would otherwise be permitted under this Section 10.04;
(r) Dispositions related to mergers, consolidations and other transactions in compliance with Section 10.03;
(s) Restricted Payments and other transactions expressly permitted by Section 10.06;
(t) sale or Disposition of immaterial Capital Stock to qualified directors where required by applicable law or to satisfy other similar requirements of applicable law with respect to the ownership of Capital Stock;
(u) surrender or waiver of contractual rights and settlement or the settlement, release waiver of contractual or surrender of contract, tort or other litigation claims in the ordinary course of business;
(s) the granting, creation or existence of business and consistent with past practice and in an amount which could not reasonably be expected to result in a Permitted Lien, and any dispositions of assets pursuant to an exercise of remedies, including by way of foreclosure, against the underlying assets subject to such Permitted Liens;
(t) dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venturers or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(u) the sale or issuance of any Subsidiary’s Capital Stock to Borrower or a Credit Party or any Subsidiary that is the direct parent of such SubsidiaryMaterial Adverse Effect;
(v) [reserved]constitutes any part of (i) any Permitted Tax Reorganization or (ii) any Permitted IPO Reorganization;
(iw) termination of leases or subleases Dispositions identified in the ordinary course of business; (ii) the expiration of any option agreement in respect of real or personal property, or (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; andSchedule 10.04;
(x) Dispositions of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility permitted under Section 10.01(x);
(y) any swap of assets in exchange for services or other assets of comparable or greater value of usefulness to the business or used in the business of the Credit Parties as a whole, as determined in good faith by the Administrative Borrower; provided that the value of all assets subject to Dispositions by any Credit Party in reliance on this clause (y) shall not exceed (I) prior to a Pricing Grid Election, $15,000,000 or (II) on and after a Pricing Grid Election, the greater of (x) $15,000,000 and (y) 15% of Pro Forma Consolidated Adjusted EBITDA over the term of this Agreement;
(z) Dispositions in an aggregate amount not to exceed the greater of (I) prior to a Pricing Grid Election, $20,000,000 or (II) on and after a Pricing Grid Election, the greater of (x) $20,000,000 and (y) 20% of Pro Forma Consolidated Adjusted EBITDA per fiscal year;
(aa) Dispositions of non-Collateral in an amount not to exceed $1,000,000 during each fiscal year20,000,000; and
(bb) Dispositions constituting the Planned Business Disposition; provided that no less than seventy-five percent (75%) of the consideration received for such sale, transfer, lease, contribution or conveyance is received in cash or Cash Equivalents; provided, that, notwithstanding further that the foregoing, in no event Net Disposition Proceeds of the Planned Business Disposition shall any Credit Party, or shall any Credit Party permit any of its Subsidiaries to, directly or indirectly, (i) file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant be subject to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to Applicable Law with respect to any corporation, limited liability company, partnership or other entity) unless such transaction is otherwise permitted hereunder or the divided entity becomes a Credit Party substantially concurrently with such division or (ii) make any Dispositions of any material Intellectual Property of any Credit Party to any Person that is not a Credit Party5.02(a)(vi).
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