Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except: (a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations; (b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments; (c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties; (d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain; (e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business; (f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment; (g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables; (h) disposition of assets as a result of a casualty loss or condemnation proceeding; (i) Investments made in accordance with Section 7.4; (j) Restricted Payments permitted under Section 7.5; (k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash; (l) Liens permitted under Section 7.2; (m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings; (n) dispositions by a Loan Party to another Loan Party (other than Parent); (o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary; (p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms; (q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement; (r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and (s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Parent and the Borrowers shall not, and will shall not permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of any of its assetstheir respective assets or any interest therein (including the sale or factoring of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialinventory (including fabricated projects for customers, surplus, obsolete or worn out property or other property not necessary for operationssuch as offshore production platforms and related components) in the ordinary course of business;
(b) transfers resulting from any taking or condemnation of any property of the Parent or any of its Restricted Subsidiaries (or, as long as no Default or Event of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) as long as no Default or Event of Default is continuing or would result therefrom, the sale or other disposition of (i) inventory equipment that the Parent reasonably determines is no longer useful in its or its Subsidiaries’ business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Partiesbusiness;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the salelease or sublease or chartering of property not constituting a sale and leaseback, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of extent not otherwise prohibited by this Agreement or the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintainother Loan Documents;
(e) a leaseas long as no Default or Event of Default is continuing or would result therefrom, subleasediscounts, license or other similar use or occupancy agreement adjustments, settlements and compromises of real property not constituting Indebtedness entered into Accounts and contract claims in the ordinary course of business;
(f) any sale of any property Asset Sale (other than their own stock i) to the Parent, a Borrower or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes Wholly-Owned by a Permitted Investment;
(g) settlements, write-offs, discount, sales Borrower or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful Party to the business of such Parent, a Borrower or another Restricted Subsidiary;
(pg) as long as no Default or Event of Default is continuing or would result therefrom, and subject to Section 2.12(a), any other Asset Sale (other than an Asset Sale in respect of a Mortgaged Vessel or Stock in a Mortgaged Vessel Owning Subsidiary or any Asset Sale of all or any portion of the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qTechnology Business) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28Fair Market Value, at least 75% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredis payable in cash, calculated on a pro forma basis for Cash Equivalents or Specified Other Consideration upon such sale or other disposition) during the term sale. For purposes of this Agreement;
clause (r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock ing), or Indebtedness or other securities of“Specified Other Consideration” shall mean, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to any Asset Sale, (i) Non-cash Consideration identified by the conveyanceParent to each Administrative Agent in writing as being “Specified Other Consideration” for such Asset Sale and the amount thereof; provided that the amount of such Non-cash Consideration, saletogether with the amount of Specified Other Consideration described in this clause (g) for all other Asset Sales after the Effective Date does not exceed $75,000,000.00; and (ii) in connection with any assets or property directly related to the Amazon, lease, assignment the amount of any liabilities or other disposition obligations of any Collateralthe Parent, a Borrower or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Restricted Subsidiary that is not a Loan Party (including expressly assumed by the transferee of any Unrestricted Subsidiary).such assets or property;
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of of, any of its assets, business or property property, whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, common stock to any Person other than the Borrower or a Guarantor (other than Parent) Subsidiary Loan Party (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition for fair market value of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition principal business operations disposed of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a inventory and Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions Investments in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesbusiness;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qc) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback such assets in connection with any Securitization Transaction in an aggregate amount not to exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) 100,000,000 at any time during the term of this Agreement;
(rd) the sale or other disposition of all or substantially all of the Capital Stock or assets of Dunhill for no less than fair market value, as reasonably determined by the Board of Directors of the Borrower (upon which event, the Administrative Agent, at the request and expense of the Borrower, will execute such documents as shall be acceptable to the Administrative Agent and its Restricted Subsidiaries may issue counsel releasing Dunhill from its obligations under the Subsidiary Guarantee Agreement);
(e) the sale, without recourse, other than for misrepresentation, by any Subsidiary of the Borrower of accounts receivable having a value, net of all allowances and discounts, not to exceed during any fiscal year of the Borrower an aggregate Dollar value of $25,000,000 for all such sales, which receivables shall be payable by Persons who are not United States citizens or sell any Capital Stock in, organized and existing under the laws of the United States or Indebtedness a state or other securities of, an Unrestricted Subsidiaryterritory thereof; and
(sf) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment sale or other disposition of such assets in an aggregate amount not to exceed $50,000,000 in any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear fiscal year of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Borrower.
Appears in 1 contract
Sale of Assets. The No Loan Parties (other thanParty shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, (except in the case of any Restricted Subsidiary, the Borrower) issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplusin each case in the ordinary course of business, obsolete and the sale or worn out property disposition of private or other property not necessary for operationsself-pay Accounts that are more than 270 days past the Discharge Date;
(b) the sale or other disposition of (i) inventory Equipment that has become obsolete, worn-out surplus or is no longer used or useful in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the such Loan Parties;
(d) the sale, assignment, transfer Party or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into is replaced in the ordinary course of business;
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction;
(d) assignments and licenses of intellectual property of the Loan Parties in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor;
(f) any sale Group Member can issue or sell any shares of its Stock or any property (other than their own stock or stock equivalents) by Stock Equivalents thereof in connection with any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentbona fide joint venture arrangement;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditany Asset Sale, including defaulted the sale or past due receivablesdisposition of hospital facilities owned by any Loan Party, disclosed on Schedule 8.4 (Asset Sales);
(h) disposition as long as no Default or Event of assets as a Default is continuing or would result of a casualty loss or condemnation proceeding;
therefrom, any other Asset Sale not otherwise permitted under clauses (a) through (g) above; provided, however, that with respect to any such Asset Sale pursuant to this clause (h), (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are such Asset Sale is made for fair market Fair Market Value, as determined at the earlier of (x) at the time the legally binding commitment for such Asset Sale was entered into and (y) if no legally binding commitment was entered into, the date of such Asset Sale, in each case without giving effect to subsequent change in value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) a Group Member shall either (x) receive not less than 75% of the aggregate sales price for such sale or other disposition shall be paid consideration in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower excess of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law $37,500,000 in the jurisdiction form of incorporation of any Restricted Subsidiary cash or the Borrower, any sale Cash Equivalents or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(py) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) aggregate non-cash consideration received for all other Asset Sales consummated after the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount Amendment No. 4 Effective Date does not exceed the greater of (x) $20,000,000 500,000,000 and (y) 282.16% of Consolidated EBITDA (for Total Assets as of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredFinancial Statements were delivered pursuant to Section 6.1(a) or (b) (Financial Statements at any time (provided, calculated on that for purposes of this clause (ii), (A) secured notes issued by the buyer of such assets that are secured by the assets being sold and evidencing obligations to pay up to 20% of the cash consideration for any such Asset Sale, (B) any securities received by any Group Member from such Asset Sale that are converted by such Group Member into cash or Cash Equivalents within 180 days following the closing of the applicable Asset Sale and (C) any liability assumed by the buyer of such assets in connection with any such Asset Sale, in each case shall be considered cash and Cash Equivalents); provided, further, AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION that if Collateral with a value in excess of $30,000,000 is the subject of any one or more Asset Sales pursuant to this clause (h) in any given calendar year, the Borrower shall deliver an updated Borrowing Base Certificate giving pro forma basis for effect thereto on or prior to the date of consummation of such sale or other disposition) during the term of this AgreementAsset Sale;
(ri) the Borrower sale or disposition of Stock or Stock Equivalents of any Unrestricted Subsidiary or Immaterial Subsidiary;
(j) any Investment permitted by Section 8.3 (Investments) and its (ii) any Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryPayment permitted by Section 8.5 (Restricted Payments); and
(sk) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (sale or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or assets not constituting Collateral if prior to and after giving effect to any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral sale of assets the Excess Availability Condition shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)satisfied.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower Company will not, and will not permit any Subsidiary Guarantor to, permit sell, lease, transfer, assign or otherwise dispose of any transfer of its Material IP Assets, whether now owned by or held or hereafter acquired, or enter into any sale-leaseback transaction with respect to such Material Assets (collectively, a Loan Party to Parent “Disposition”), except for:
(a) sales of inventory;
(b) Dispositions permitted under Section 10.2;
(c) sales in the ordinary course of business of obsolete or redundant equipment or equipment of no further use in the business of the Company or a Subsidiary Guarantor, unless a Default or an Event of Default has occurred and is continuing or would result therefrom;
(d) Dispositions by the Company to a Subsidiary Guarantor or by a Subsidiary Guarantor to the Company or another Subsidiary Guarantor, other than, subject to clause (b) above and clause (f) below, any Disposition of the Goldex Mine, the Lapa Mine, the LaRonde Mine or the Meadowbank Mine, or any part thereof;
(e) Dispositions at arm’s-length and for fair market value, to the extent that the net proceeds of any such Disposition, in excess of amounts permitted under clause (f) below, are applied within 365 days from the date of such Disposition to either (i) purchase assets to be used in the business of the Company or any Subsidiary Guarantor or (ii) repay unsubordinated Indebtedness of the Company or any Subsidiary Guarantor (other than Indebtedness between or among the Company and any Subsidiary), provided that, in the case of any such repayment of Indebtedness, the Company shall in accordance with Section 8.5 offer to prepay the Notes pro rata with all other Indebtedness then being repaid, such pro rata portion of the Notes to be offered to be repaid to be calculated by multiplying (x) the total amount of net proceeds being applied pursuant to this clause (ii) by (y) a fraction, the numerator of which is not a Loan Party the aggregate principal amount of Notes then outstanding and the denominator of which is the aggregate principal amount of Indebtedness (including the Notes) that would receive any Unrestricted Subsidiaryportion of such repayment (calculated prior to such repayment); and
(f) Dispositions which would otherwise not be permitted by clauses (a) through (e) above, provided that such Dispositions are at arm’s-length and for fair market value, and the aggregate book value of the Material Assets subject to all such Dispositions pursuant to this clause (f) during any fiscal year of the Company does not exceed 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year. Any Disposition of shares of common stock of any Subsidiary Guarantor shall, for purposes of this Section 10.7, be valued at an amount that bears the same proportion to the total assets of such Subsidiary Guarantor as the number of such shares of common stock bears to the total number of shares of common stock of such Subsidiary Xxxxxxxxx.
Appears in 1 contract
Sale of Assets. The Loan Parties Neither the Borrower nor any of its Subsidiaries (other thanthan Excluded Foreign Subsidiaries) shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Borrower, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock Equipment that has become obsolete or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions is replaced in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceedingbusiness;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales a true lease or sublease of Real Property not constituting Indebtedness and other dispositions of assets by the Borrower not constituting a Sale and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, Leaseback Transaction and (ii) not less than 75% of the aggregate sales price for such a sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction Transaction, in an aggregate amount not exceed the greater of each case as permitted under Section 8.15 (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this AgreementOperating Leases; Sale/Leasebacks);
(rd) assignments and licenses of intellectual property of the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To ;
(e) any Asset Sale to the extent the Required Lenders Borrower or any Guarantor;
(f) as long as no Default or all LendersEvent of Default is continuing or would result therefrom, if required under Section 10.2) waive the provisions of this Section 7.6 any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such Asset Sale pursuant to this Section 7.6 clause (other than to a Loan Party (other than Parent)f), such Collateral shall automatically be deemed sold free and clear (i) the Dollar Equivalent of the Liens created by aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $5,000,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the Collateral Documentspayment of the Obligations as set forth in, and to the Administrative Agent extent required by, Section 2.9 (Mandatory Prepayments);
(g) as long as no Default or Event of Default is authorized continuing or would result therefrom, an Asset Sale for Fair Market Value payable in cash in respect of the Stock or assets of the Little Giant Pump Company; provided, however, that such (i) Asset Sale is consummated on or prior to take July 31, 2006 and (ii) the Net Cash Proceeds from such sale are applied to the Obligations as set forth in, and to the extent required by, Section 2.9(a); FIRST LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY
(h) the sale of (x) certain Investment Property set forth on Schedule 8.4(a) in an aggregate Net Cash Proceeds of which shall take any actions reasonably requested by not exceed $500,000 and (y) the Borrower Borrower's Investments in order to effect and/or evidence the foregoingKulthorn Kirby, so long as the Borrower each sale in clauses (x) and (y) are consummxxxx on or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing prior to July 31, 2006; and
(i) so long as no Default or anything else to the contrary Event of Default is continuing or would result from any sale hereunder, and so long as an Asset Sale is made for Fair Market Value, payable in the Loan Documentscash, the Borrower will not, and will not permit any Subsidiary to, permit any transfer sale of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiarycertain Real Property set forth on Schedule 8.4(b).;
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assignsecuritize, transfer exchange or otherwise dispose of of, any of its assets, business assets or property or, in any interest therein (including the case sale or factoring at maturity or collection of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, accounts) to any Person, or permit or suffer any other Person other than the Borrower or a Guarantor to acquire any interest in any of its assets (other than Parent) (or to qualify directors if required by applicable lawany such disposition being an "ASSET SALE"), except:
(a) the sale or other disposition of immaterial, surplus, obsolete inventory or worn out property or other property not necessary for operationsequipment in the ordinary course of business (including pursuant to the implementation of joint sales agreements);
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower equipment which have become obsolete or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into replaced in the ordinary course of business;
(fc) any the lease or sublease of real property not constituting a sale of any property and leaseback (other than their own stock or stock equivalents) a sale and leaseback permitted by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted InvestmentSECTION 8.6);
(gd) settlements, write-offs, discount, sales or other dispositions in the ordinary course assignments and licenses of business intellectual property of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To ;
(e) any Asset Sale to the Borrower or any Subsidiary Guarantor (except any Asset Sale made by the Restricted License Subsidiary);
(f) as long as no Default or Event of Default is continuing or would result therefrom, any Pre-Approved Securitization Transaction for Fair Market Value;
(g) as long as no Default or Event of Default is continuing or would result therefrom, any Pre-Approved Station Sale for Fair Market Value; PROVIDED, that the aggregate consideration payable to the Borrower or its Subsidiaries in respect of such Asset Sale is not less than 75% in cash;
(h) as long as no Default or Event of Default is continuing or would result therefrom, any Spectrum License Sale for Fair Market Value, payable at least as to 75% in cash upon such sale, PROVIDED, that the Net Cash Proceeds of such Asset Sale are applied to the prepayment of the Obligations to the extent the Required Lenders required by SECTION 2.7;
(i) as long as no Default or all LendersEvent of Default is continuing or would result therefrom, if required under Section 10.2) waive the provisions of this Section 7.6 any other Asset Sale for Fair Market Value, payable as to 75% in cash upon such sale; PROVIDED, HOWEVER, that with respect to any such sale pursuant to this CLAUSE (I) all Net Cash Proceeds of such Asset Sale are applied to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear prepayment of the Liens created Obligations to the extent required by SECTION 2.7;
(j) as long as no Default or Event of Default is continuing or would result therefrom, any Asset Swap, PROVIDED, that (i) the Collateral Documents, and Borrower shall have given the Administrative Agent is authorized to take and shall take any actions reasonably requested prior notice thereof, (ii) the consideration received by the Borrower in order or any of its Subsidiaries therefor shall be at least equal to effect and/or evidence the foregoingFair Market Value of the assets transferred by it pursuant to such Asset Swap, so long as (iii) if and to the extent that the Borrower or applicable Loan Party shall have provided any of its Subsidiaries receives consideration for the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else assets transferred by it pursuant to such Asset Swap that is in addition to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).Equivalent Assets received in
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, in the case of any Restricted Subsidiary, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale Equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that the extent Dollar Equivalent of the Required Lenders aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $5,000,000;
(i) a true lease or all Lenderssublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction, if required in each case as permitted under Section 10.28.16 (Operating Leases; Sale/Leasebacks);
(d) waive assignments and licenses of intellectual property of the provisions Borrower and its Subsidiaries in the ordinary course of this Section 7.6 business;
(e) any Asset Sale to the Borrower or any Subsidiary Guarantor;
(f) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (f), (i) the conveyanceDollar Equivalent of the aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $10,000,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, saleand to the extent required by, lease, assignment Section 2.9 (Mandatory Prepayments); and
(g) issuances or other disposition sales of any Collateral, Stock or any Collateral is sold as permitted Stock Equivalents (i) by this Section 7.6 any Subsidiary Guarantor to the Borrower or any Subsidiary Guarantor, (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created ii) by the Collateral DocumentsBorrower to any Permitted Holder or (iii) by the Borrower to any other Person, and if such issuance by the Borrower is made on terms acceptable to the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)its discretion.
Appears in 1 contract
Samples: Credit Agreement (WCI Steel, Inc.)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries other Group Member to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assets, business assets or property or, in any interest therein (including the case sale or factoring at maturity or collection of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, accounts) to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawany such disposition being an “Asset Sale”), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory Inventory in the ordinary course of business it being understood that transfers of Inventory between and (ii) Permitted Investments;
(c) non-exclusive licenses among the Borrowers and sublicenses any other Loan Party at cost, in accordance of Patentspast practice, Trademarks, Copyrights and other intellectual property rights granted by the Borrower shall be deemed to be a sale or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct disposition of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for Equipment which financial statements have been delivered, calculated on a pro forma basis for such sale has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ;
(c) the Lease or sublease of Real Property not constituting a sale and leaseback, to the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted not otherwise prohibited by this Section 7.6 Agreement;
(d) assignments and licenses of intellectual property of the Group in the ordinary course of business;
(e) any Asset Sale (other than Stock in a Member of the Group) to a Loan Party and any Asset Sale consisting of Stock in a Member of the Group to a Loan Party;
(f) the sale of trade accounts receivable and related rights under the Receivables Purchase Facilities and pursuant to the Contribution Agreement;
(g) [Intentionally Omitted]; and
(h) as long as no Default or Event of Default is continuing or would result therefrom, any other than Parent)Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such sale pursuant to this clause (h), (i) the aggregate consideration received for the sale of all assets sold during any Fiscal Year shall not exceed $5,000,000, (ii) all Net Cash Proceeds of such Collateral shall automatically be deemed sold free and clear Asset Sale are applied to the prepayment of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else Obligations to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned extent required by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Section 2.10.
Appears in 1 contract
Samples: Credit Agreement (Memec Inc)
Sale of Assets. The Loan Parties (other thanNeither Borrower shall, subject to Section 7.14, Parent) will not, and will not nor shall they permit any of their Restricted respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, in the case of any Restricted Subsidiary, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale Equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ;
(c) issuances of Stock by (i) the Convertible Borrower or Holdings pursuant to the Syndication Agreement (as defined in Schedule 2.6) and the corresponding provisions of the Amended Borrower Agreement (as defined in Schedule 2.6) or the Amended Holdings Agreement (as defined in Schedule 2.6), as applicable, (ii) any Group Member that is a real estate investment trust not exceeding 1% of such Group Member’s total outstanding Stock (on a fully diluted basis), and (iii) any other Group Member in connection with such Group Member becoming a real estate investment trust and not exceeding 1% of such Group Member’s total outstanding Stock (on a fully diluted basis);
(d) assignments and licenses of intellectual property of the Group Members in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Group Member, except to the extent prohibited by the Required Lenders Pledge Agreement; and
(or all Lendersf) any other Asset Sale for Fair Market Value, if required under Section 10.2) waive the provisions of this Section 7.6 payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (f) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the conveyancepayment of the Obligations as set forth in, saleand to the extent required by, leaseSection 2.9;
(g) sale and leaseback transactions; provided, assignment or other disposition however, that the Fair Market Value of any Collateral, or any Collateral is sold as all such Asset Sales shall not exceed $50,000,000; and
(h) Asset Sales in connection with securitizations to the extent permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary8.1(k).
Appears in 1 contract
Samples: Credit Agreement (Prologis)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will notNeither Holdings nor the Borrower shall, and will not neither shall permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $1,000,000;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Required Lenders Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to the Borrower or all Lendersany Subsidiary Guarantor; and
(f) as long as no Default or Event of Default is continuing or would result therefrom, if required under Section 10.2) waive the provisions of this Section 7.6 any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such sale pursuant to this Section 7.6 clause (other than to a Loan Party (other than Parent)f), (i) the aggregate consideration received for the sale of all assets sold during any Fiscal Year shall not exceed $10,000,000 and (ii) all Net Cash Proceeds of such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower Asset Sale are applied as set forth in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party Section 2.9 (including any Unrestricted SubsidiaryMandatory Prepayments).
Appears in 1 contract
Samples: Credit Agreement (Aviall Inc)
Sale of Assets. The Loan Parties (other thanNo Group Member shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Parent, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) the sale or disposition of Equipment that has become obsolete or is replaced in the ordinary course of business;
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction, in each case as permitted under Section 8.14 (Sale/Leasebacks);
(d) assignments, licenses and sublicenses of intellectual property of any Group Member in the ordinary course of business;
(e) any sale of any property (other than their own stock or stock equivalents) Asset Sale by any Restricted Subsidiary Non-Loan Party to any Loan Party for not more than Fair Market Value;
(other than Parentf) to issuances or sales of Stock or Stock Equivalents of Lavender Heights LLP and/or Laurel Heights LLP in connection with the extent any resulting Investment constitutes a Permitted InvestmentLimited Partner Profit Share Arrangement;
(g) settlementsissuances or transfers of Stock of the Parent (i) from the Parent to Holdco I, write-offs(ii) from Holdco I to Holdco II and (iii) from Holdco II to the holder of the Holdco II Exchangeable Stock, discount, sales or other to the extent made on a substantially concurrent basis and required for the exercise of the right of the holder of the Holdco II Exchangeable Stock to exchange such Holdco II Exchangeable Stock for Stock of the Parent; Credit Agreement FA Sub 3 Limited
(h) dispositions in the ordinary course of business by any Group Member of extension of trade credit, including defaulted such Group Member’s Investment or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceedingother interest in any Managed Fund;
(i) Investments made any issuance or sale of Stock by any Group Member in accordance connection with an Investment permitted pursuant to Section 7.48.3 (Investments);
(j) Restricted Payments permitted under Section 7.5;(i) any Asset Sale among the Loan Parties; provided, however, that such Asset Sale does not materially and adversely affect the Lenders hereunder and (ii) issuances of Stock of Holdco I to Holdco II and from Holdco I to the Parent; and
(k) sales and as long as no Default or Event of Default is continuing or would result therefrom, any other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made Asset Sale for fair market value Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (as reasonably determined by the Borrowerk), so long (i) no Event the Dollar Equivalent of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) the aggregate consideration received during any Fiscal Year for all such Asset Sales shall exist or result therefrom, not exceed $10,000,000 and (ii) not less than 75% an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long Obligations as such Capital Stock is pledged as Collateral pursuant to the Guaranty set forth in, and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Propertyrequired by, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and Section 2.8 (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Each of the Parent and the Borrowers shall not, and will shall not permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of any of its assetstheir respective assets or any interest therein (including the sale or factoring of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialinventory (including fabricated projects for customers, surplus, obsolete or worn out property or other property not necessary for operationssuch as offshore production platforms and related components) in the ordinary course of business;
(b) transfers resulting from any taking or condemnation of any property of the Parent or any of its Restricted Subsidiaries (or, as long as no Default or Event of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) as long as no Default or Event of Default is continuing or would result therefrom, the sale or other disposition of (i) inventory equipment that the Parent reasonably determines is no longer useful in its or its Subsidiaries’ business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Partiesbusiness;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the salelease or sublease or chartering of property not constituting a sale and leaseback, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of extent not otherwise prohibited by this Agreement or the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintainother Loan Documents;
(e) a leaseas long as no Default or Event of Default is continuing or would result therefrom, subleasediscounts, license or other similar use or occupancy agreement adjustments, settlements and compromises of real property not constituting Indebtedness entered into accounts in the ordinary course of business;
(f) any sale of any property Asset Sale (other than their own stock i) to the Parent, a Borrower or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes Wholly-Owned by a Permitted Investment;
(g) settlements, write-offs, discount, sales Borrower or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful Party to the business of such Parent, a Borrower or another Restricted Subsidiary;
(pg) as long as no Default or Event of Default is continuing or would result therefrom, and subject to Section 2.12(a), any other Asset Sale (other than an Asset Sale in respect of a Mortgaged Vessel or Stock in a Mortgaged Vessel Owning Subsidiary or any Asset Sale of all or any portion of the Borrower and its Restricted Subsidiaries may terminate Technology Business) for Fair Market Value, at least 100% of which is payable in cash, Cash Equivalents or unwind Specified Other Consideration upon such sale. For purposes of this clause (g), “Specified Other Consideration” means, with respect to any Hedging Transaction in accordance with its terms;
(q) Asset Sale of any assets or property directly related to the sale Amazon, the amount of any liabilities or other disposition for fair market value obligations of Real Estate the Parent, a Borrower or any other Restricted Subsidiary that is expressly assumed by the transferee of any such assets or property; provided that the aggregate gross proceeds of any or all assets subject to an Asset Sale pursuant to a Sale this clause (g) and Leaseback Transaction in an aggregate amount clauses (h) and (i) below shall not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) 10,000,000.00 during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Superpriority Senior Secured Debtor in Possession Credit Agreement (McDermott International Inc)
Sale of Assets. The Loan Parties No Restricted Credit Party shall, nor shall it permit any of its Subsidiaries to, sell, convey, or otherwise transfer any of its Property (including, without limitation, any working interest, overriding royalty interest, production payments, net profits interest, royalty interest, or mineral fee interest) other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer so long as no Default exists or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptwould result therefrom:
(ai) the sale of Hydrocarbons or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Liquid Investments in the ordinary course of business;,
(fii) any sale Asset Sales of any property equipment that is (other than their own stock A) obsolete, worn out or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions uneconomic and disposed of in the ordinary course of business, (B) no longer necessary for the business of extension such Person or (C) contemporaneously replaced by equipment of trade credit, including defaulted at least comparable value and use,
(iii) Asset Sales of Property between or past due receivablesamong Restricted Credit Parties;
(hiv) disposition Asset Sales of assets as a result Oil and Gas Properties which are not attributable to Proven Reserves and which is not Collateral or which is not otherwise required pursuant to the terms of a casualty loss or condemnation proceedingthis Agreement to be Collateral;
(iv) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales the Asset Sale of Oil and other dispositions of assets by the Borrower and its Restricted Subsidiaries Gas Properties which are made for attributable to Proven Reserves; provided that, (A) except with respect to the Specified Asset Sales, 100% of the consideration received in respect of such Asset Sale shall be cash or cash equivalents, (B) the consideration received in respect of such Asset Sale shall be equal to or greater than the fair market value of such Oil and Gas Properties, interest therein or Subsidiary subject of such Asset Sale (as reasonably determined by the Borrowerboard of directors or the equivalent governing body of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer of the Borrower certifying to that effect), so long (iC) no Event if any such Asset Sale is of Default under Section 8.1(a)a Subsidiary owning Oil and Gas Properties, 8.1(b), 8.1(h) or 8.1(i) such Asset Sale shall exist or result therefrom, include all the Equity Interests of such Subsidiary; and (iiD) not less than 75if the BB Reduction Amount exceeds 5% of the aggregate sales price for such sale or other disposition most recently redetermined Borrowing Base, then the Borrowing Base shall be paid reduced in cash;
(l) Liens permitted under accordance with Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent2.2(e);
(ovi) trade-ins the Asset Sale of Hedging Arrangements; provided that, (A) 100% of the consideration received in respect of such Asset Sale shall be cash or cash equivalents or other exchanges Hedging Arrangements, (B) the consideration received in respect of tangible assets for other tangible assets of comparable such Asset Sale shall be equal to or greater value useful to than the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 such Hedging Arrangements; and (yC) 28if the BB Reduction Amount exceeds 5% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredredetermined Borrowing Base, calculated on a pro forma basis for such sale or other disposition) during then the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryBorrowing Base shall be reduced in accordance with Section 2.2(e); and
(svii) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course Asset Sales of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 Property (other than Oil and Gas Properties or Hedging Arrangements) not to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take exceed $250,000 during any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)fiscal year.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanNone of Holdings or any Borrower shall, subject to Section 7.14, Parent) will not, and will not nor shall they permit any of their Restricted respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete Cash Equivalents or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock Equipment or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions Real Property in the ordinary course of business of extension of trade credit, including defaulted that has become obsolete or past due receivables;
(h) disposition of assets as a result of a casualty loss is replaced or condemnation proceeding;
(i) Investments made is no longer necessary in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted SubsidiaryCompany and its Subsidiaries;
(pi) the Borrower a true lease or sublease of Real Property not constituting Indebtedness and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its termsnot constituting a sale and leaseback and (ii) a sale of assets pursuant to a sale and leaseback permitted under Section 8.17(b) (Operating Leases; Sale/Leasebacks);
(qd) assignments and licenses of intellectual property of the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower Company and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To ;
(e) any Asset Sale (i) by the extent the Required Lenders (Company or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect any Domestic Subsidiary Guarantor to the conveyance, sale, lease, assignment or other disposition of any Collateral, Company or any Collateral is sold as permitted Domestic Subsidiary Guarantor, (ii) by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Australian Loan Party to Parent any other Australian Loan Party or a (iii) by any Subsidiary of the Company that is not a Loan Party to any Loan Party;
(including f) licenses and sublicenses by the Company and its Subsidiaries of software, trademarks and other intellectual property in the ordinary course of business and which licenses and sublicenses do not materially interfere with the business of the Company and its Subsidiaries;
(g) transfers resulting from any Unrestricted casualty or condemnation of assets;
(h) pro rata dispositions of property to joint venturers in connection with the dissolution or termination of a Permitted Joint Venture to the extent required pursuant to Contractual Obligations relating to such Permitted Joint Venture and to the extent such dissolution or termination is otherwise permitted hereunder; 117 AMENDED AND RESTATED CREDIT AGREEMENT SWIFT & COMPANY
(i) as long as no Default or Event of Default is continuing or would result therefrom, an Asset Sale (the "Australian Asset Sale") for at least Fair Market Value in an arm's length transaction of all or substantially all of the assets of Australian Holdings and its Subsidiaries or all of the shares of Australian Holdings or Australian Company, at least 75% of which shall be payable solely in cash, Cash Equivalents or assumption of the liabilities of the seller, in each case upon the consummation of such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (i), all Obligations of any Australian Borrower hereunder, all Secured Obligations of Australian Holdings and its Subsidiaries and all obligations of Australian Holdings and its Subsidiaries under the Australian Intercompany Credit Agreement and the Australian Intercompany Guaranty shall have been irrevocably paid in full in cash and each Letter of Credit Issued for the account of any Australian Borrower shall have been terminated (or, in respect of each such Letter of Credit which shall not have been terminated, all Reimbursement Obligations and other Secured Obligations in respect of such Letter of Credit shall have been assumed by the Company or cash collateral shall have been provided to the Administrative Agent in an amount equal to 102% of the Letter of Credit Obligations for such Letter of Credit); and provided, further, that, (A) on or prior to the consummation of such Australian Asset Sale, the Borrower shall deliver to the Administrative Agent a Borrowing Base Certificate as of the date of such consummation and after giving effect thereto and (B) all payments expected to be required as a result of such Australian Asset Sale pursuant to Section 2.9 (Mandatory Prepayments) after giving effect to such Australian Asset Sale shall have been irrevocably made in cash;
(j) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, at least 75% of the consideration for which shall be payable in cash, Cash Equivalents or assumption of the liabilities of the seller, in each case upon the consummation of such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (j), the Dollar Equivalent of the aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $95,000,000; and provided, further, that (i) to the extent that, in any Fiscal Year, the Dollar Equivalent of the aggregate consideration received during the previous Fiscal Year for all such Asset Sales shall be less than $95,000,000 (without giving effect to the carryover permitted by this proviso), the excess of $95,000,000 over such aggregate consideration shall be added for such Fiscal Year to the $95,000,000 limit set forth in the preceding proviso and (ii) on or prior to the consummation of any such Asset Sale, (A) the Borrower shall deliver to the Administrative Agent a Borrowing Base Certificate as of the date of such consummation and after giving effect thereto and (B) all payments expected to be required as a result of such Asset Sale pursuant to Section 2.9 (Mandatory Prepayments) after giving effect to such Asset Sale shall have been irrevocably made in cash; and
(k) any issuance of Stock or Stock Equivalents by any Subsidiary of the Company to an existing holder of Stock of such Subsidiary)., so long as the proportion of such Stock and of each class of such Stock or Stock Equivalents (both on an outstanding and a fully-diluted basis) held by each holder of such Stock or Stock Equivalents does not change as a result of such issuance. 118 AMENDED AND RESTATED CREDIT AGREEMENT SWIFT & COMPANY
Appears in 1 contract
Samples: Credit Agreement (S&c Holdco 3 Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and nor will not it permit any of their Restricted Subsidiaries Subsidiary to, convey, sell, lease, assign, transfer sell or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, Property to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Person, except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) Sales of inventory in the ordinary course of business and consistent with past practices.
(ii) Permitted Investments;Sales of the assets listed on Schedule 1.1.
(ciii) nonAny transfer of an interest in accounts or notes receivable and related assets as part of a Qualified Receivables Transaction.
(iv) Investments to the extent permitted by Section 6.14.
(v) Licenses, cross-exclusive licenses or sublicenses by the Borrower and sublicenses its Subsidiaries of Patentssoftware, Trademarks, Copyrights trademarks and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct course of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to which do not materially interfere with the business of the Borrower or of the Borrower and the Subsidiaries, taken as a whole.
(vi) The Borrower and its Restricted Subsidiaries may sell or no longer commercially practicable to maintain;
(e) a leasediscount, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in each case without recourse and in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses overdue accounts receivable arising in the ordinary course of business. To , but only in connection with the extent the Required Lenders compromise or collection thereof consistent with ordinary business practice (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition and not as part of any Collateral, bulk sale).
(vii) The Borrower or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear Domestic Subsidiary of the Liens created by the Collateral Documents, and the Administrative Agent Borrower that is authorized a Wholly-Owned Subsidiary may transfer or lease Property to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a other Domestic Subsidiary that is a Wholly-Owned Subsidiary.
(viii) Each of the Borrower and its Subsidiaries may (a) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person’s business, (b) unless a Default shall have occurred and be continuing, subject to Section 2.7(b), sell, lease or otherwise dispose of any assets, provided that the aggregate consideration received in respect of all Asset Sales pursuant to this clause (viii) shall not a Loan Party exceed $20,000,000 in any twelve month period, not including the proceeds of the sale of assets listed on Schedule 1.1 and (including c) enter into one or more Sale and Leaseback Transactions, provided that the Attributable Debt arising therefrom shall not exceed $25,000,000 at any Unrestricted Subsidiary)time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Actuant Corp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "Asset Sale"), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(fb) any the sale or disposition of Inventory in connection with the sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to fixed assets at the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementslocation where such Inventory is maintained; provided, write-offshowever, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of that the aggregate sales price for Fair Market Value of all such sale or other disposition Inventory disposed of in any Fiscal Year shall be paid in cash;
not exceed ten million Dollars (l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent$10,000,000);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qc) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale Equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that the extent aggregate Fair Market Value of all such Equipment disposed of in any Fiscal Year shall not exceed thirty million Dollars ($30,000,000);
(d) assignments and licenses of intellectual property of the Required Lenders Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to the Borrower or Pellet;
(f) subject to the consent of the Administrative Agent which shall not be unreasonably withheld, the sale of all Lendersof the assets or the Stock of Pellet, if required under Section 10.2ProCoil, and Ingleside Holdings, L.P.;
(g) waive the provisions as long as no Default or Event of this Section 7.6 Default has occurred and is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such sale pursuant to this clause (g), (i) the conveyanceaggregate consideration received for the sale of all assets sold during any Fiscal Year shall not exceed forty million Dollars ($40,000,000) for non-real property assets and ten million Dollars ($10,000,000) for real property assets and (ii) all Net Cash Proceeds of such Asset Sale are applied to the prepayment of the Obligations to the extent required by Section 2.9 (Mandatory Prepayments); and
(h) as long as no Default or Event of Default has occurred and is continuing or would result therefrom, sale, lease, assignment any Asset Sale permitted under Section 4.08 (Limitation on Sale of Mortgaged Property) or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party an Asset Sale involving any Collateral) 4.10 (Limitation on Sale of Assets other than Parent)), such Collateral shall automatically be deemed sold free and clear Mortgaged Property) of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Indenture.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will U.S. Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, wind up, liquidate or dissolve its affairs, or sell, convey, selltransfer, lease, assign, transfer lease (including in a sale and leaseback transaction) or otherwise dispose of, all or any part of their respective assets or any interest therein AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION (including the sale or factoring at maturity or collection of any accounts other than factoring arrangements for Non-Guarantor Subsidiaries) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital StockStock or Stock Equivalent (any such disposition being an “Asset Sale”), in each case whether now owned domestic or hereafter acquiredforeign, to any Person other than except for the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptfollowing:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that, other than in respect of the sale of the Pocatello Equipment, the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $15,000,000; and provided further, however, that the proceeds from any sale in respect of the Pocatello Equipment shall be used solely to fund obligations in respect of required Remedial Action;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Required Lenders U.S. Borrower and its Subsidiaries in the ordinary course of business;
(e) any Like Kind Exchange;
(f) any transfer of assets by the U.S. Borrower or all Lendersany of its Subsidiaries as consideration for an Investment permitted by Section 8.3;
(g) any Asset Sale to the U.S. Borrower or any Guarantor;
(h) the sale of the San Xxxx Property; and
(i) as long as no Default or Event of Default is continuing or would result therefrom, if required under Section 10.2any other Asset Sale for Fair Market Value, provided, however, that at least seventy-five percent (75%) waive of the provisions of this Section 7.6 consideration received for such Asset Sale is payable in cash upon such sale; provided further, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such Asset Sale pursuant to this Section 7.6 clause (other than to a Loan Party (other than Parent)i), all Net Cash Proceeds of such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral DocumentsAsset Sale are applied as set forth in, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentsextent required by, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party Section 2.10 (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of of, any of its assets, business or property property, whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, common stock to any Person other than the Borrower or a any Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) : the sale or other disposition for fair market value of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition , disposed of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any ; the sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a inventory and Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions Investments in the ordinary course of business of extension of trade creditbusiness; the sale, including defaulted lease or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges transfer of assets of any Restricted Subsidiary to the Borrower or any other Loan Party; provided, that if the sale, lease or transfer of assets is made by a Subsidiary that is not a Loan Party, useful to such sale, lease or transfer must not be for consideration that exceeds the business fair market value of such Restricted Subsidiary;
(p) the Borrower assets sold, leased or transferred; the sale of real property and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction related personal property in accordance connection with its terms;
(q) the 2016 Store Closures; the sale or other disposition of certain furniture, fixtures, equipment and other personal property located at the premises of the stores subject of the 2016 Store Closures; sales, dispositions or transfers of assets not otherwise permitted by the foregoing, provided that (A) the assets or other property are sold for fair market value, (B) the aggregate net book value of Real Estate all assets disposed of pursuant to a Sale and Leaseback Transaction in an aggregate amount this clause (f) shall not exceed $100,000,000 in the greater aggregate during the period from the Closing Date through the Revolving Commitment Termination Date, (C) no Default or Event of (x) $20,000,000 Default has occurred and is continuing or would occur as a result of such sale, disposition or transfer and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(rD) the Borrower shall be in compliance on a Pro Forma Basis after giving effect to such sale with the covenants in Article VII (and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate of a Responsible Officer of the Borrower confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party clauses (including any Unrestricted SubsidiaryA) through (D).); and
Appears in 1 contract
Sale of Assets. The No Loan Parties (other thanParty shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, (except in the case of any Restricted Subsidiary, the Borrower) issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplusin each case in the ordinary course of business, obsolete and the sale or worn out property disposition of private or other property not necessary for operationsself-pay Accounts that are more than 270 days past the Discharge Date;
(b) the sale or other disposition of (i) inventory Equipment that has become obsolete, worn-out surplus or is no longer used or useful in the business of such Loan Party or is replaced in the ordinary course of business business; AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) Permitted Investments;
(c) non-exclusive licenses a sale of assets pursuant to a sale and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Partiesleaseback transaction;
(d) the sale, assignment, transfer or lapse or abandonment assignments and licenses of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Loan Parties in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor;
(f) any sale Group Member can issue or sell any shares of its Stock or any property (other than their own stock or stock equivalents) by Stock Equivalents thereof in connection with any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentbona fide joint venture arrangement;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditany Asset Sale, including defaulted the sale or past due receivablesdisposition of hospital facilities owned by any Loan Party, disclosed on Schedule 8.4 (Asset Sales);
(h) disposition as long as no Default or Event of assets as a Default is continuing or would result of a casualty loss or condemnation proceeding;
therefrom, any other Asset Sale not otherwise permitted under clauses (a) through (g) above; provided, however, that with respect to any such Asset Sale pursuant to this clause (h), (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are such Asset Sale is made for fair market Fair Market Value, as determined at the earlier of (x) at the time the legally binding commitment for such Asset Sale was entered into and (y) if no legally binding commitment was entered into, the date of such Asset Sale, in each case without giving effect to subsequent change in value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) a Group Member shall either (x) receive not less than 75% of the aggregate sales price for such sale or other disposition shall be paid consideration in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower excess of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law $37,500,000 in the jurisdiction form of incorporation of any Restricted Subsidiary cash or the Borrower, any sale Cash Equivalents or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(py) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) aggregate non-cash consideration received for all other Asset Sales consummated after the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount Amendment No. 4 Effective Date does not exceed the greater of (x) $20,000,000 500,000,000 and (y) 282.16% of Consolidated EBITDA (for Total Assets as of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredFinancial Statements were delivered pursuant to Section 6.1(a) or (b) (Financial Statements at any time (provided, calculated on that for purposes of this clause (ii), (A) secured notes issued by the buyer of such assets that are secured by the assets being sold and evidencing obligations to pay up to 20% of the cash consideration for any such Asset Sale, (B) any securities received by any Group Member from such Asset Sale that are converted by such Group Member into cash or Cash Equivalents within 180 days following the closing of the applicable Asset Sale and (C) any liability assumed by the buyer of such assets in connection with any such Asset Sale, in each case shall be considered cash and Cash Equivalents); provided, further, that if Collateral with a value in excess of $30,000,000 is the subject of any one or more Asset Sales pursuant to this clause (h) in any given calendar year, the Borrower shall deliver an updated Borrowing Base Certificate giving pro forma basis for effect thereto on or prior to the date of consummation of such sale or other disposition) during the term of this AgreementAsset Sale;
(ri) the Borrower sale or disposition of Stock or Stock Equivalents of any Unrestricted Subsidiary or Immaterial Subsidiary;
(j) any Investment permitted by Section 8.3 (Investments) and its (ii) any Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryPayment permitted by Section 8.5 (Restricted Payments); and
(sk) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (sale or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or assets not constituting Collateral if prior to and after giving effect to any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral sale of assets the Excess Availability Condition shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreementsatisfied. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Each of Group and the Borrower will not, and will not permit any of their Restricted its respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any Accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted SubsidiarySubsidiary of Group, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale of any property asset or assets (other than their own stock or stock equivalentsincluding, without limitation, a Subsidiary’s Stock) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets Warnaco Entity as a result of a casualty loss or condemnation proceeding;
long as (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions the purchase price paid to such Warnaco Entity for such asset shall be no less than the Fair Market Value of assets by such asset at the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower)time of such sale, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not no less than 75% of the aggregate sales purchase price for such sale or other disposition asset shall be paid in cashcash and the remaining amount paid in notes receivable (provided that in the case of an Asset Sale consummated when no Loan or Loans or unreimbursed amounts in respect of drawn Letters of Credit are outstanding (Loan, Loans and Letters of Credit being used in this proviso as defined in each of this Agreement and the Canadian Facility), 50% of the purchase price for such asset may be paid in cash and the remaining amount paid in notes receivable) (which notes receivable shall be in form and substance reasonably satisfactory to the Administrative Agent), (iii) neither the seller of such assets nor any of its Affiliates shall have any subsequent payment obligations in respect of such sale, other than customary and
(1) the Borrower shall prepay the Loans (first the Swing Loans until paid in full and then the Revolving Loans) promptly upon receipt of such net cash proceeds in the amount of all net cash proceeds received from time to time (including in respect of any note receivable) with respect to the sale that resulted in such excess occurring and all subsequent sales of assets by any Loan Party pursuant to this clause (b) during such calendar year and (2) with respect to the sale that resulted in such excess occurring and each subsequent sale of assets by any Loan Party pursuant to this clause (b) during such calendar year which results in net cash proceeds in excess of $500,000, the Borrower shall deliver to the Administrative Agent, no later than the date of such sale, a Borrowing Base Certificate as of the Business Day immediately preceding the date of such sale executed by a Responsible Officer of Group giving pro forma effect to such sale, which Borrowing Base Certificate shall show that the aggregate principal amount of Revolving Credit Outstandings does not exceed the Maximum Credit at such time(for purposes of this clause (v), net cash proceeds of an asset sale means proceeds of such asset sale received from time to time (including a payment on a note receivable) in cash or Cash Equivalents net of (x) the reasonable cash costs of sale, (y) taxes paid or payable as a result thereof and (z) any amount required to be paid or prepaid on Indebtedness (other than the Obligations) secured by a perfected Lien on the assets subject to such asset sale);
(lc) Liens permitted under Section 7.2;
(m) transfers of assets from (i) any sale or issuance by the Borrower of its own Qualified Capital Stock Loan Party to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)any other Loan Party, (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary Warnaco Entity that is not a Loan Party, useful to provided that the business aggregate Fair Market Value of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate assets sold, leased, transferred or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value otherwise disposed of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of this subclause (xii) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else pursuant to the contrary next proviso of this subclause (ii)) shall not exceed $20,000,000 in the Loan Documents, aggregate plus the Borrower will not, Fair Market Value of any equipment and will not permit any Subsidiary to, permit any transfer of Material IP inventory owned on the Closing Date by a Loan Party in connection with its domestic manufacturing operations that are subsequently transferred to Parent a Foreign Subsidiary, and provided further that the Loan Parties may transfer the Xxxxxx Xxxxx Underwear trademark and/or rights to use such trademark to one or more Warnaco Entities that are not Loan Parties so long as (A) each such transfer shall be on arm’s-length terms and the price paid to the transferring Loan Parties shall be no less than the Fair Market Value of such trademark at the time of such transfer, (B) each such transfer is for cash, Cash Equivalents and/or a Subsidiary note (such note to be on arm’s-length terms at a market interest rate and otherwise reasonably acceptable to the Administrative Agent and pledged to the Collateral Agent for the benefit of the Secured Parties), (C) no Default or Event of Default has occurred and is continuing at the time of such transfer or would result from such transfer and (D) the transferee of such trademark shall have entered into an agreement on terms reasonably satisfactory to the Administrative Agent pursuant to which such transferee agrees that the Collateral Agent may dispose of Inventory utilizing such trademark without restriction or royalty payment to the transferee, and (iii) any Warnaco Entity that is not a Loan Party to any other Warnaco Entity;
(including d) the licensing or sublicensing of trademarks and trade names by any Unrestricted SubsidiaryWarnaco Entity; provided that (i) if the licensing or sublicensing is by a Loan Party, if the applicable trademark or trade name has generated sales in excess of $20,000,000 in the prior fiscal year, such license or sublicense (x) shall not have an initial term in excess of 7 years and (y) shall not have aggregate up-front payments and minimum guaranteed royalties in excess of $7,500,000 or, together with the aggregate up-front payments and minimum guaranteed royalties for all other such licenses and sublicenses, in an aggregate amount in excess of $25,000,000 and (ii) any such licensing or sublicensing to a Person other than a Loan Party shall take place on an arm’s-length basis;
(e) the rental by the Warnaco Entities, as lessors or sub-lessors, in the ordinary course of their respective businesses, on an arm’s-length basis, of real property and personal property, in each case under leases (other than Capital Leases);
(f) the sale or disposition of machinery and equipment no longer used or useful in the business of the Warnaco Entities;
(g) any sale of fixed assets not in connection with a Sale and Leaseback Transaction that were purchased in connection with a proposed lease financing transaction within 45 days of such Asset Sale, which assets are subsequently leased back by the Borrower or one of its Subsidiaries;
(h) any Asset Sale permitted by Section 8.7;
(i) any Asset Sale in connection with a Sale and Leaseback Transaction permitted pursuant to Section 8.16(b); and
(j) the sale of any asset listed on Schedule 8.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Neither the Borrower nor any Restricted Subsidiary will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer sell or otherwise dispose of its Property (including any sale or disposal of its assets, business or property or, in the case Capital Stock of any Restricted Subsidiary, but excluding any shares issuance by the Borrower of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, its own Equity Interests) to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Person, except:
(a) the sale or other disposition sales of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
Inventory (bexcluding Compression Units) the sale or other disposition of (i) inventory in the ordinary course of business and leases or rentals of Inventory (iiincluding Compression Units) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any sale sales of any property Compression Units which comply with the terms and conditions in subparagraph (other than their own stock i) and (ii) and either subparagraph (iii) or stock equivalentssubparagraph (iv) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;below:
(i) Investments made for any sale of one or more Compression Units pursuant to a single transaction which results in accordance with Section 7.4a gross sales price in excess of $15,000,000, or for any sale of one or more Compression Units, individually or in the aggregate for any Fiscal Year, which results in an aggregate gross sales price in such Fiscal Year in excess of $30,000,000, the Net Cash Proceeds must be remitted by or on behalf of the applicable purchaser directly to the Agent for application to the Obligations as set forth herein;
(jii) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions in respect of assets by any proposed sale of Compression Units, the Borrower shall have delivered to the Agent a certificate of the president and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by either the Borrower), so long chief financial officer or the controller of the Borrower certifying that (i) no Event the aggregate gross sales price for the Compression Units in any individual transaction, shall not be less than seventy-five percent (75%) of Default under Section 8.1(a)the Net Orderly Liquidation Value for such Compression Units as established by the Current Valuation Report, 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, such lesser amount as determined by Agent in its Permitted Discretion and (ii) not less than 75% such sale shall be made to a bona fide third party purchaser on an arm’s-length basis;
(iii) in respect of any proposed sale of Compression Units, no consent shall be required if the Borrower shall have delivered to the Agent a certificate of the aggregate president and either the chief financial officer or the controller of the Borrower certifying that the gross sales price for such the proposed sale or other disposition shall be of Compression Units, together with the gross sales price of all prior sales of Compression Units since the Closing Date (less the aggregate amount paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower during such period in respect of replacement Compression Units) shall not exceed in the aggregate twenty-five percent (25%) of the total Net Orderly Liquidation Value established in the Current Valuation Report; and
(iv) in respect of any proposed sale of Compression Units, the Borrower shall obtain the consent of the Agent, which may be given or withheld in its own Qualified Capital Stock to Parent Permitted Discretion, if the gross sale price for the proposed sale of Compression Units, together with the gross sale price of all prior sales of Compression Units since the Closing Date (so long as less the aggregate amount paid by Borrower during such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreementperiod in respect of replacement Compression Units), exceeds in the aggregate twenty-five percent (ii25%) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law total Net Orderly Liquidation Value established in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;Current Valuation Report.
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qc) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction Property that is worn-out, obsolete or no longer used or useful in an aggregate amount not exceed the greater business of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue Subsidiaries;
(d) other sales or sell dispositions of assets having a book value not exceeding $15,000,000 in the aggregate in any Capital Stock inFiscal Year;
(e) subject to Section 6.21, leases, sales, or Indebtedness other dispositions of Property (i) between or among Loan Parties or (ii) between or among Restricted Subsidiaries that are not Loan Parties;
(f) Restricted Payments permitted pursuant to Section 6.13;
(g) the sale or other securities ofdisposition of assets that are not included in the calculation of the Borrowing Base (other than assets that were previously included in the Borrowing Base and were subsequently excluded therefrom due to a failure to remain eligible, an Unrestricted Subsidiaryunless at the time of such sale or disposition, the Aggregate Credit Exposure does not exceed the Borrowing Base); and
(sh) dispositions of Unrestricted Subsidiaries.
(a) (i), subject to the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions terms of this Section 7.6 with respect Agreement, to borrow, repay and reborrow Revolving Loans at any time prior to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Facility Termination Date.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their its Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of of, any of its assets, business or property orproperty, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquiredacquired (each, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law“Disposition”), except:
(a) the sale or other disposition for fair market value of immaterial, surplus, obsolete or worn out property or other property not necessary for operationsoperations disposed of in the ordinary course of business;
(b) the sale or other disposition of (i) inventory and Permitted Investments in the ordinary course of business and (ii) Permitted Investmentsbusiness;
(c) non-exclusive licenses Dispositions permitted by Sections 7.2, 7.3, 7.4 and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties7.5;
(d) leases, subleases, licenses or sublicenses of real or personal property in the saleordinary course of business, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights in each case that are immaterial to do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintaintaken as a whole;
(e) a lease, sublease, license Dispositions of Permitted Investments for fair market value or other similar use or occupancy agreement of real property otherwise in connection with transactions not constituting Indebtedness entered into in the ordinary course of businessotherwise prohibited by this Agreement;
(f) any sale so long as no Event of any property (other than their own stock Default has occurred and is continuing or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to would occur after giving effect thereto, the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales Disposition of delinquent notes or other dispositions accounts receivable in the ordinary course of business of extension purposes of trade creditcollection only (and not for the purpose of any bulk sale, including defaulted financing or past due receivablessecuritization transaction);
(g) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(h) disposition the Disposition (in addition to those Dispositions permitted by the foregoing clause (g)) of real estate assets as a result of a casualty loss or condemnation proceedingowned by SU with an aggregate value not to exceed $20,000,000;
(i) Investments made Dispositions of non-core assets acquired in accordance connection with Section 7.4a Permitted Acquisition or other Investment permitted by this Agreement, provided that the fair market value of such non-core assets (determined as of the date of acquisition thereof by the Borrower or Restricted Subsidiary, as the case may be) so disposed pursuant to this clause (i) shall not exceed 25% of the purchase price paid for all such assets acquired in such Permitted Acquisition or other permitted Investment;
(j) Restricted Payments permitted any other Disposition in an aggregate amount not to exceed, in any Fiscal Year, (x) the greater of $25,000,000 and 7.5% of LTM Consolidated EBITDA (as of the date of the making of such Disposition) (the “Annual Dispositions Basket”) plus (y) commencing with the first full Fiscal Year ending after the Sixth Amendment Effective Date, any unused amount of the Annual Dispositions Basket from the immediately preceding Fiscal Year, provided that, only after fully utilizing the Annual Dispositions Basket for the current Fiscal Year can any such carry-forward amount be included under Section 7.5this clause (y);
(k) sales and other dispositions Dispositions of assets by intellectual property rights which are, in the reasonable business judgment of the Borrower and its or such Restricted Subsidiaries which are made for fair market value (as reasonably determined by Subsidiary, no longer used or useful in, the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% business of the aggregate sales price for Borrower or such sale or other disposition shall be paid in cashRestricted Subsidiary;
(l) Liens permitted under Section 7.2Dispositions of property and assets to the extent such property and assets were the subject of a casualty or condemnation proceedings;
(m) Dispositions of property and assets (i) any sale or issuance by from the Borrower of its own Qualified Capital Stock or any Subsidiary to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty a Loan Party and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of from any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a any other Restricted Subsidiary that is not a Loan Party Party;
(n) Dispositions of accounts receivable in connection with the collection or compromise thereof; and
(o) the Disposition (including any Unrestricted Subsidiary)by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will not nor shall it permit any of their its Restricted Subsidiaries to, sell, convey, sell, lease, assign, transfer dispose or otherwise dispose of transfer any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
assets except that (a) any Credit Party may sell inventory, and license intellectual property in the sale or other disposition ordinary course of immaterialbusiness, surplus, obsolete or worn out property or other property not necessary for operations;
(b) any Credit Party may sell, convey, dispose or otherwise transfer any of its assets to any other Credit Party so long as no Default or Event of Default has occurred and is continuing or would be caused thereby; provided that the sale receiving Credit Party shall ratify, grant and confirm the Liens on such assets (and any other related Collateral) pursuant to documentation satisfactory to the Administrative Agent, (c) any Credit Party may sell, convey, dispose or other disposition otherwise transfer equipment that is in need of replacement (as determined by such Credit Party in the exercise of its business judgment) to third parties if (i) inventory such Credit Party receives fair market value for such equipment, and (ii) 75% of the consideration received for such equipment is cash, (d) any Credit Party may sell, convey, dispose or otherwise transfer any of its assets no longer used or useful in its business, (e) any Credit Party may sell, convey, dispose or otherwise transfer accounts or payment intangibles (each as defined in the UCC) resulting from the compromise or settlement thereof in the ordinary course of business and for less than the full amount thereof, (iif) Permitted Investments;
any Credit Party may sell, convey, dispose or otherwise transfer Liquid Investments in the ordinary course of business, (cg) nonany Credit Party may sell, convey, dispose or otherwise transfer licenses, sublicenses, leases or subleases (other than leases or subleases of Material Real Property) granted to any third parties in arm’s-exclusive licenses and sublicenses length commercial transactions in the ordinary course of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary business that do not interfering interfere in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and or any of its Restricted Subsidiaries, (h) any Credit Party may abandon intellectual property in the ordinary course of business to the extent the same does not individually or in the aggregate materially affect the ability of the Borrower or its Restricted Subsidiaries to operate its businesses, (i) any Credit Party may sell or no longer commercially practicable exchange specific items of equipment solely to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into replace equipment with replacement equipment in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
; and (j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate sell, convey, dispose or unwind otherwise transfer any Hedging Transaction in accordance with its terms;
Properties not otherwise permitted under the preceding clauses (qa) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of – (j); provided that, (x) the aggregate amount of all such sales, conveyance, dispositions and transfers shall not exceed $20,000,000 10,000,000 in any fiscal year, and (y) 28the Borrower shall not cease to directly or indirectly own 100% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term wholly-owned Restricted Subsidiary as a result of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as a transaction otherwise permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)hereunder.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanI) No Credit Party will, subject to Section 7.14, Parent) nor will not, and will not any Credit Party permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer lease or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale Newco or other disposition any of immaterialits Subsidiaries may, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and consistent with past practices, exchange, in any transaction or series of related transactions, on a like value basis, (i) its real property for real property owned by another Person, (ii) Permitted Investmentsits airplane engines for airplane engines owned by another Person, and (iii) its airline routes, "airport gates" and/or "slots" for airline routes, "airport gates" and/or "slots" owned by another Person; PROVIDED, HOWEVER, that (x) in no event may Collateral be exchanged and (y) to the extent Newco or any of its Subsidiaries receives any cash and/or cash equivalents from any such property exchange permitted pursuant to this clause (a), the amount of such cash and/or cash equivalents shall be applied in accordance with clause (f) of this Section 7.03(I);
(b) Newco or any of its Subsidiaries may, in the ordinary course of business and consistent with past practices, sell spare parts (which in no event shall include aircraft or aircraft engines) and supplies (including, without limitation, fuel) so long as each such sale is for an amount at least equal to the fair market value thereof (as determined by the Borrower);
(c) non-exclusive licenses and sublicenses parting out" of Patents, Trademarks, Copyrights and other intellectual property rights granted an aircraft engine shall be permitted by the Borrower Newco or any Restricted Subsidiary not interfering of its Subsidiaries in any material respect with the ordinary conduct course of the business of the Loan Partiesand consistent with past practices;
(d) the saleNewco or any of its Subsidiaries may, assignmentin a transaction, transfer or lapse or abandonment sell any of any registrations or applications for registration of any Patentsits aircraft, Trademarks, Copyrights and other intellectual property rights that are immaterial which aircraft is then substantially contemporaneously leased back to the business respective seller, PROVIDED that with respect to sale and leasebacks of aircraft owned on the Restatement Effective Date, the stated expiration of the Borrower and lease of such aircraft to Newco or one of its Restricted Subsidiaries or no longer commercially practicable to maintainis after the Revolving Loan Maturity Date;
(e) a lease, sublease, license Newco or other similar use or occupancy agreement any of real property not constituting Indebtedness entered into its Subsidiaries may sell airline tickets and related services in the ordinary course of business;
(f) Newco or any sale of its Subsidiaries may sell, lease or otherwise dispose of any property assets (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) Collateral), PROVIDED that to the extent any resulting Investment constitutes a Permitted Investmentthe gross proceeds received from all such transactions occurring after December 15, 1995 (including cash or cash equivalent proceeds received pursuant to Section 7.03(a)) exceeds $500,000,000, an amount equal to 50% of the Net Sale Proceeds from all transactions which occur after such $500,000,000 threshold is exceeded (including 50% of the Net Sale Proceeds from that transaction in which such threshold is exceeded but only out of that portion of the gross proceeds which exceeds such $500,000,000 threshold) shall be applied to repay Revolving Loans and reduce Revolving Loan Commitments in accordance with Sections 3.02(c) and 2.03(b);
(g) settlementsNewco or any of its Subsidiaries may, write-offs, discount, sales or other dispositions in the ordinary course of business and consistent with industry practice, (i) trade the use of extension any "slot" with another air carrier or (ii) lease or license any such "slot" to another air carrier, in each case on a temporary basis and PROVIDED that such transactions do not involve the transfer of trade credit, including defaulted or past due receivables;title to such "slots"; and
(h) disposition any Credit Party may dispose of assets as its equity interests in (x) GHI-CA Corporation, a result Delaware corporation which owns all of the outstanding shares of capital stock of Grand Holding, Inc., a casualty loss or condemnation proceeding;Nevada corporation, d/b/a Champion Air and/or (y) Express Air I owned by such Credit Party on the Restatement Effective Date.
(iII) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions The Borrower will not convey, sell, lease, transfer or otherwise dispose of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist remove or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrowersubstitute, any sale Collateral or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to take any action that could materially diminish the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate the Collateral taken as a whole, or agree to do any of the foregoing at any future time, except as may be permitted pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Route Security Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will not nor shall it permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose (“Dispose” or “Disposition”) of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person (including any Unrestricted Subsidiary), or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, in the case of any Restricted Subsidiary, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operationsany Asset Sale to any Loan Party;
(b) the sale or other disposition of Stock or Stock Equivalents of any Unrestricted Subsidiary;
(c) transfers of assets that constitute Investments in Unrestricted Subsidiaries permitted by Section 8.3(k) (Investments);
(d) any Asset Sale where the Dollar Equivalent of the Fair Market Value of the assets subject to such Asset Sale is less than $5,000,000 individually or $35,000,000 in the aggregate;
(i) Dispositions of inventory in the ordinary course of business and (ii) Permitted Investments;
Dispositions of property or assets (cother than operating theatres) non-exclusive licenses and sublicenses of Patentsthat have become obsolete, Trademarksdamaged, Copyrights and other intellectual property rights granted by the Borrower worn or any Restricted Subsidiary not interfering in any surplus (including Intellectual Property no longer material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and or any of its Restricted Subsidiaries or no longer commercially practicable to maintain;
(eSubsidiaries) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale like kind exchanges of any property (theatres for other than their own stock theatres or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentproperty, in each case, for Fair Market Value;
(g) settlementsas long as no Event of Default is continuing or would result therefrom, write-offsany Asset Sale for not less than Fair Market Value of assets set forth on Schedule 8.4(g) (Asset Sales); provided, discounthowever, sales or other dispositions that an amount equal to all Net Cash Proceeds of such Asset Sale in excess of $300,000,000 are applied to the ordinary course payment of business of extension of trade creditthe Obligations as set forth in, including defaulted or past due receivablesand to the extent required by, Section 2.9 (Mandatory Prepayments);
(h) as long as no Event of Default is continuing or would result therefrom, any sale or disposition of assets any Multiplex theatre for not less than Fair Market Value; provided, however, that an amount equal to all Net Cash Proceeds of such sale or disposition are applied to the payment of the Obligations as a result of a casualty loss or condemnation proceedingset forth in, and to the extent required by, Section 2.9 (Mandatory Prepayments);
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long as (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) is continuing or 8.1(i) shall exist or would result therefrom, therefrom and (ii) not less than at least 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance consideration received by the Borrower of its own Qualified Capital Stock to Parent or any Subsidiary from such Asset Sale is in cash or Cash Equivalents, any other Asset Sale for not less than Fair Market Value; provided, however, that (so long as such Capital Stock is pledged as Collateral pursuant to A) the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary Dollar Equivalent of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).consideration
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted Subsidiaries Subsidiary to, convey, sell, lease, assign, transfer farm-out, convey or otherwise dispose of transfer any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptasset except for:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Hydrocarbons in the ordinary course of business;
(fb) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discountordinary course and consistent with past practice farmouts, sales or other dispositions of undeveloped acreage or Oil and Gas Properties with no associated Proved Reserves and assignments in connection with such transactions, in each case pursuant to contractual arrangements entered into before the ordinary course of business of extension of trade credit, including defaulted or past due receivablesAmendment Effective Date;
(hc) disposition of assets as a result of a casualty loss or condemnation proceeding[Reserved];
(id) Investments made in accordance with Section 7.4;the Permitted Asset Sales; provided that
(jA) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75100% of the aggregate sales price for consideration received in respect of such sale or other disposition shall be paid cash, cash equivalents or any liabilities of the Borrower or any Restricted Subsidiary that are assumed by the transferee and for which the creditors in cashrespect thereof have provided valid releases or such other consideration as described on Annex V;
(lB) Liens permitted under Section 7.2the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Oil and Gas Property, interest therein or the Restricted Subsidiary subject of such sale or other disposition (as reasonably determined by the Board of Directors of the Borrower and, if requested by the Loan Administrator, the Borrower shall deliver a certificate of a Responsible Officer of the Borrower certifying to that effect);
(mC) (i) any sale or issuance by the Borrower and its Restricted Subsidiaries comply with the requirements of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iiiSection 3.05(c)(iii) to the extent necessary to satisfy applicable; and
(D) if any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any such sale or issuance by other disposition is of a Restricted Subsidiary, such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins sale or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to disposition shall include all the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business Equity Interests of such Restricted Subsidiary;
(pe) the Borrower sales and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale other dispositions of seismic, geologic or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleasesdata, licenses and sublicenses similar rights or assets in the ordinary course of business. To the extent the Required Lenders business and consistent with past practice;
(or all Lendersf) sales, if required under Section 10.2) waive the provisions of this Section 7.6 with respect transfers and dispositions to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable any other Loan Party shall have provided the Administrative Agent a certificate confirming compliance Party; and
(g) dispositions of claims against customers, working interest owners, other industry partners or any other Person in connection with this Agreement. Notwithstanding the foregoing workouts or anything else to the contrary in the Loan Documentsbankruptcy, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent insolvency or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)other similar proceedings with respect thereto.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower Borrowers will not, and will not permit any Subsidiary to, permit sell, assign, farm-out, convey or otherwise transfer any Property or to issue or sell any Equity Interests in a Co-Borrower or any of its Restricted Subsidiaries except (i) an issuance or sale of common stock or Preferred Stock of Xxxxxxx, in each case whether as a Permitted Preferred Stock Distribution or otherwise and without regard to whether or not there is any Default or Event of Default or (ii) the following sales, assignments, farm-outs, conveyances and/or transfers, provided, no Default or Event of Default exists or will exist after giving effect to such sale, assignment, conveyance, farm-out or transfer:
(a) a transfer of Material IP owned by assets between or among a Loan Party Co-Borrower and its Restricted Subsidiaries;
(b) an issuance or sale of Equity Interests in a Restricted Subsidiary to Parent a Co-Borrower or to another Restricted Subsidiary;
(c) the sale, lease or other disposition of produced Hydrocarbons, equipment, inventory, accounts receivable or other properties or assets in the ordinary course of business, including, without limitation, any abandonment, farm-in, farm-out, lease or sublease of any oil and gas properties or the forfeiture or other disposition of such properties pursuant to standard form operating agreements, in each case in the ordinary course of business in a Subsidiary that is not a Loan Party manner customary in the oil and gas business;
(d) the sale or other disposition of cash or cash equivalents;
(e) with respect to PDP Reserves and PDNP Reserves, the sale or other disposition (including Casualty Events) of any Unrestricted Oil and Gas Property or any interest therein or any Restricted Subsidiary owning Oil and Gas Properties; provided that
(1) Borrowers shall provide the Administrative Agent at least ten (10) days prior written notice of any sale, assignment, conveyance or transfer hereunder,
(2) 100% of the consideration received in respect of such sale or other disposition shall be cash,
(3) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Oil and Gas Property, interest therein or the Restricted Subsidiary subject of such sale or other disposition (as reasonably determined by the board of directors of the Borrowers and, if requested by the First Lien Administrative Agent or the Administrative Agent, the Borrowers shall deliver a certificate of a Responsible Officer of each Co-Borrower certifying to that effect),
(4) if such sale or other disposition of Oil and Gas Property requires the consent of the First Lien Administrative Agent in accordance with Section 9.11(e)(4) of the First Lien Credit Agreement, such sale or disposition shall also be subject to the written Consent of the Administrative Agent and each Lender, not to be unreasonably withheld, and
(5) if any such sale or other disposition is of a Restricted Subsidiary owning Oil and Gas Properties, such sale or other disposition shall include all the Equity Interests of such Restricted Subsidiary; and
(f) subject to the mandatory prepayment requirements in Section 3.03(c)(i), the sale or other disposition of Oil and Gas Properties constituting PUD Reserves or Unproved Reserves; provided that Borrowers shall, upon request of the Administrative Agent, deliver a certificate of a Responsible Officer of each Co-Borrower certifying to the Administrative Agent the consideration received in respect of any such sale or other disposition; and provided further that to the extent that the consideration received in respect of any such sale or other disposition exceeds (in the aggregate with all other sales or other dispositions of PUD Reserves and Unproved Reserves occurring after the Effective Date) $5,000,000, then such sale or other disposition shall be subject to the written Consent of the Administrative Agent, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Second Lien Term Credit Agreement (Sanchez Energy Corp)
Sale of Assets. The Except as permitted by Section 7.3, such Loan Parties (other than, subject to Section 7.14, Parent) Party will not, and will not permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer to make or otherwise dispose of consummate any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Asset Disposition, except, so long as no Default or Event of Default exists and all proceeds thereof are remitted to a Controlled Account pursuant to Section 5.16, an Asset Disposition which constitutes or is:
(a) a sale of Inventory in the Ordinary Course of Business;
(b) a disposition of Equipment which is obsolete, unmerchantable, or otherwise unsalable in the Ordinary Course of Business;
(c) a disposition of Inventory which is obsolete, unmerchantable, or otherwise unsalable in the Ordinary Course of Business;
(d) a sale or other disposition of immaterialIntellectual Property which is, surplusin the reasonable judgment of Borrowers, obsolete no longer economically practicable to maintain or worn out property or other property not necessary for operationsuseful in the conduct of the Loan Parties and Subsidiaries' business;
(be) the sale a write-off, discount, sale, or other disposition of defaulted or past due Accounts and similar obligations in the Ordinary Course of Business and not part of any financing of Accounts;
(f) a sale, transfer, or other disposition, (i) inventory in the ordinary course of business and by any Loan Party to any other Loan Party; or (ii) Permitted Investmentsany Subsidiary which is not a Loan Party to any Loan Party for fair market value or for a value more favorable to such Loan Party (in each case as determined by Borrowers and acceptable to Administrative Agent) at the time of such sale, transfer, or disposition;
(cg) non-exclusive licenses termination of a lease of Property in the Ordinary Course of Business, which could not reasonably be expected to have a Material Adverse Effect, and sublicenses does not result from any Borrower or Subsidiary's default thereunder;
(h) a license or sublicense of PatentsIntellectual Property rights in the Ordinary Course of Business not interfering, Trademarksindividually or in the aggregate, Copyrights in any material respect with the conduct of the business of the Loan Parties and other intellectual property rights the Subsidiaries;
(i) a lease, sublease, license, or sublicense of Real Estate granted by the any Borrower or any Restricted Subsidiary to other Persons in the Ordinary Course of Business not interfering in any material respect with the ordinary conduct of the any Borrower or Subsidiary's business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary Administrative Agent's access to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties Collateral; or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Freds Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Issuer will not, not and will not permit any of their Restricted its Subsidiaries toto sell, assign, license, lease, convey, sell, lease, assignexchange, transfer or otherwise dispose of any of its assetsproperty or assets (each, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, a “Disposition”) to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Person, except:
(ai) the sale or other disposition Dispositions of immaterial, surplus, obsolete or worn out property or inventory and other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fii) any sale Dispositions of any obsolete or worn-out property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentassets;
(giii) settlementsDisposition of the Issuer’s and its Subsidiaries’ common or preferred equity securities, write-offsoptions, discountwarrants and other derivative securities: (a) in public or private offering, (b) in connection with the acquisition of a business, the sale or disposition of a Subsidiary or a similar transaction; (c) as compensation to any employee, contractor or other Person; (d) as required or permitted by any contract to which the Issuer or any Subsidiary is a party prior to the Initial Issue Date (including without limitation any preferred Stock the Issuer may grant pursuant to the Roxbury Loan Documents), or (e) in order to qualify a Person for the board of directors or governing body of the Issuer or a Subsidiary as required pursuant to Applicable Law;
(iv) Disposition of Excluded Property, including dispositions of real property;
(v) Dispositions or property or assets in connection with the incurrence, refinancing or repayment of Permitted Indebtedness;
(vi) Dispositions of property or assets required or permitted pursuant to the terms of any indenture, agreement, instrument or other document governing First Lien Obligations, including without limitation dispositions of property required or permitted pursuant to the Roxbury Argent Loan Documents or any intercreditor or similar agreement between groups of holders of the Issuer’s or its Subsidiaries’ Indebtedness;
(vii) Dispositions of assets in connection with any acquisition of a business (whether by acquisition of equity securities, all or substantially all of the assets, or otherwise), regardless of the structure of the transaction, and including without limitation any sales or other dispositions divestitures in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesconnection with such acquisition;
(hviii) disposition Dispositions pursuant to any contractual obligation of assets as the Issuer or a result of a casualty loss or condemnation proceedingSubsidiary existing on the Initial Issuance Date;
(iix) Investments made Dispositions in accordance connection with Section 7.4any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(jx) Restricted Payments permitted under Dispositions in connection with any involuntary loss, damage or destruction of property, with the Net Cash Proceeds subject to Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement3.7(a)(ii) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than ParentSection 4.7(a)(ii);
(oxi) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties orThe licensing, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term non-exclusive basis, of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses Intellectual Property in the ordinary course of business. To , or the extent lapse or abandonment of registered patents, trademarks, copyrights and other Intellectual Property of the Required Lenders Issuer or any Subsidiary;
(xii) Dispositions of accounts receivable or any delinquent receivables arising in the ordinary course of business;
(xiii) Dispositions between the Issuer and a Subsidiary, or between two Subsidiaries;
(xiv) Terminations of leases, subleases, licenses, sub-licenses and agreements (including management agreement and other similar agreements) in the ordinary course of business;
(xv) The surrender or waiver of contractual rights or the settlement release or surrender of contract or tort claims in the ordinary course of business;
(xvi) The trade-in-kind or exchange of any asset for any other asset or assets of equivalent value (as determined by the Issuer in good faith);
(xvii) Any other Dispositions of property or assets, with all Lenders, if required under Section 10.2) waive the provisions such property and assets disposed of pursuant to this Section 7.6 7.6(xvii) not to exceed a value of U.S.$10,000,000 in any fiscal year (as determined by the Issuer in good faith in its reasonable judgement), with respect the Net Cash Proceeds subject to Section 3.7(a)(ii) and Section 4.7(a)(ii); and
(xviii) Dispositions required pursuant to Applicable Law (including without limitation pursuant to the conveyance, sale, lease, assignment written instruction of a Governmental Authority) or other disposition which the Issuer has determined in good faith and upon the opinion of any Collateral, counsel are or may be required pursuant to Applicable Law or to avoid a potential material adverse effect on the Issuer or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)its Subsidiaries.
Appears in 1 contract
Sale of Assets. The No Loan Parties (other thanParty shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, (except in the case of any Restricted Subsidiary, the Borrower) issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplusin each case in the ordinary course of business, obsolete and the sale or worn out property disposition of private or other property not necessary for operations;self-pay Accounts that are more than 270 days past the Discharge Date; AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(b) the sale or other disposition of (i) inventory Equipment that has become obsolete, worn-out surplus or is no longer used or useful in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the such Loan Parties;
(d) the sale, assignment, transfer Party or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into is replaced in the ordinary course of business;
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction;
(d) assignments and licenses of intellectual property of the Loan Parties in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor;
(f) any sale Group Member can issue or sell any shares of its Stock or any property (other than their own stock or stock equivalents) by Stock Equivalents thereof in connection with any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentbona fide joint venture arrangement;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditany Asset Sale, including defaulted the sale or past due receivablesdisposition of hospital facilities owned by any Loan Party, disclosed on Schedule 8.4 (Asset Sales);
(h) disposition as long as no Default or Event of assets as a Default is continuing or would result of a casualty loss or condemnation proceeding;
therefrom, any other Asset Sale not otherwise permitted under clauses (a) through (g) above; provided, however, that with respect to any such Asset Sale pursuant to this clause (h), (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are such Asset Sale is made for fair market Fair Market Value, as determined at the earlier of (x) at the time the legally binding commitment for such Asset Sale was entered into and (y) if no legally binding commitment was entered into, the date of such Asset Sale, in each case without giving effect to subsequent change in value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) a Group Member shall either (x) receive not less than 75% of the aggregate sales price for such sale or other disposition shall be paid consideration in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower excess of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law $25,000,000 in the jurisdiction form of incorporation of any Restricted Subsidiary cash or the Borrower, any sale Cash Equivalents or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(py) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) aggregate non-cash consideration received for all other Asset Sales consummated after the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount Amendment No. 3 Effective Date does not exceed the greater of (x) $20,000,000 500,000,000 and (y) 282.16% of Consolidated EBITDA (for Total Assets as of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredFinancial Statements were delivered pursuant to Section 6.1(a) or (b) (Financial Statements at any time (provided, calculated on that for purposes of this clause (ii), (A) secured notes issued by the buyer of such assets that are secured by the assets being sold and evidencing obligations to pay up to 20% of the cash consideration for any such Asset Sale, (B) any securities received by any Group Member from such Asset Sale that are converted by such Group Member into cash or Cash Equivalents within 180 days following the closing of the applicable Asset Sale and (C) any liability assumed by the buyer of such assets in connection with any such Asset Sale, in each case shall be considered cash and Cash Equivalents); provided, further, that if Collateral with a value in excess of $20,000,000 is the subject of any one or more Asset Sales pursuant to this clause (h) in any given calendar year, the Borrower shall deliver an updated Borrowing Base Certificate giving pro forma basis for effect thereto on or prior to the date of consummation of such sale or other disposition) during the term of this AgreementAsset Sale;
(ri) the Borrower and its Restricted Subsidiaries may issue sale or sell disposition of Stock or Stock Equivalents of9 any Capital Stock in, Unrestricted Subsidiary or Indebtedness or other securities of, an Unrestricted Immaterial Subsidiary; and;
(sj) any Investment permitted by Section 8.3 (Investments) and (ii) any Restricted Payment permitted by Section 8.5 (Restricted Payments); and AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(k) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (sale or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or assets not constituting Collateral if prior to and after giving effect to any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral sale of assets the Excess Availability Condition shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)satisfied.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, conveyConvey, sell, lease, assign, transfer or otherwise dispose of any of its assetsproperty, business or property assets (including leasehold interests), whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s 's Capital Stock, in each case whether now owned or hereafter acquired, Stock to any Person other than the Borrower Parent or a Guarantor (other than any wholly owned Subsidiary of Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterialinventory, or of surplus, obsolete or worn out property or other property not necessary for operationsassets, whether now owned or hereafter acquired, in the ordinary course of business;
(b) the sale or other disposition of any other property or assets in the ordinary course of business (iit being understood that this shall not include the sale or other disposition of all or substantially all of any business unit);
(c) the sale or other disposition of any property or assets (other than assets described in clauses (a) and (b) above), provided that the aggregate market value of all assets so sold or disposed of in any period of twelve consecutive months shall not exceed $5,000,000;
(d) the sale or discount without recourse of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable into or for notes receivable in connection with the compromise or collection thereof, provided that, in the case of any Foreign Subsidiary, any such sale or discount may be with recourse if such sale or discount is consistent with customary practice in such Foreign Subsidiary's country of business;
(e) the sale or other disposition of any assets or property by Parent or any of its Subsidiaries to Parent, either Borrower or any wholly owned Subsidiary thereof (provided that no Loan Party shall sell or otherwise dispose of any Collateral (other than inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patentsand, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower extent permitted by Sections 6.03, 6.06 and its Restricted Subsidiaries or no longer commercially practicable 6.08, cash and Cash Equivalents) pursuant to maintain;
this clause (e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party);
(f) the sale of the Capital Stock or all or substantially all of the assets of the Subsidiaries set forth on Schedule 6.05(f);
(g) as permitted by Section 6.04(b), (c) or (d);
(h) the abandonment, sale or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of Parent or either Borrower, no longer economically practicable to maintain or useful to in the conduct of the business of such Restricted SubsidiaryParent, the Borrowers and the Subsidiaries thereof taken as a whole;
(pi) any sale or other disposition of the Borrower and property of Parent or any of its Restricted Subsidiaries may terminate Subsidiaries, so long as the Net Proceeds of any such sale or unwind any Hedging Transaction other disposition do not exceed $10,000,000 in the aggregate after the Closing Date, provided that an amount equal to 100% of the Net Proceeds of such sale or other disposition less the Reinvested Amount is applied in accordance with its termsSection 2.13(b);
(qj) any issuance, sale or other disposition of preferred stock (or equivalent equity interest) of any Subsidiary constituting Indebtedness created, incurred, assumed or existing in compliance with Section 6.01;
(k) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock inof an Ultimate Parent in connection with any Exercise, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment sale or other disposition of any Collateral, of any Capital Stock of an Ultimate Parent purchased or otherwise acquired in connection with any Exercise or any Collateral is sold as permitted by this Section 7.6 Permitted Ultimate Parent Payment; and
(l) the sale or other disposition of any Capital Stock, property or assets of any Foreign Subsidiary existing on the Closing Date (other than to DCJ, any Mexican Subsidiary which is a Loan Party (Subsidiary Guarantor, Jafra Cosmetics Dominicana S.A., CDRJ Europe Holding Company B.V. or any Subsidiary of CDRJ Europe Holding Company B.V. existing on the Closing Date), or of any property or assets of any other Subsidiary existing on the Closing Date that are used in any business or operations conducted in any jurisdiction other than Parent))the United States, Mexico, the Dominican Republic and Europe; provided that any such Collateral disposition shall automatically be deemed sold free and clear of the Liens created not include property or assets owned by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the either Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing any Subsidiary Guarantor and used in any business or anything else to the contrary operations conducted in the Loan DocumentsUnited States, Mexico, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent Dominican Republic or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Europe.
Appears in 1 contract
Samples: Credit Agreement (Dirsamex Sa De Cv)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Parent and the Applicants shall not, and will shall not permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of (including by allocation of assets by division or allocation of assets to any series of limited liability company, limited partnership or trust that constitutes a separate legal entity or Person, in each case pursuant to a transaction referenced in Section 1.4(h)) any of its assetstheir respective assets or any interest therein (including the sale or factoring of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialinventory (including fabricated projects for customers, surplus, obsolete or worn out property or other property not necessary for operationssuch as offshore production platforms and related components) in the ordinary course of business;
(b) transfers resulting from any taking or condemnation of any property of the Parent or any of its Restricted Subsidiaries (or, as long as no Default or Event of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) as long as no Default or Event of Default is continuing or would result therefrom, the sale or other disposition of (i) inventory equipment that the Parent reasonably determines is no longer useful in its or its Subsidiaries’ business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Partiesbusiness;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the salelease or sublease or chartering of property not constituting a sale and leaseback, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of extent not otherwise prohibited by this Agreement or the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintainother Credit Documents;
(e) a leaseas long as no Default or Event of Default is continuing or would result therefrom, subleasediscounts, license or other similar use or occupancy agreement adjustments, settlements and compromises of real property not constituting Indebtedness entered into accounts and contract claims in the ordinary course of business;
(f) any sale of any property Asset Sale (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parenti) to the extent Parent, an Applicant or any resulting Investment constitutes a Permitted Investment;
(g) settlements, writeCredit Party Wholly-offs, discount, sales Owned by an Applicant or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful Credit Party to the business of such Parent, an Applicant or another Restricted Subsidiary;
(pg) as long as no Default or Event of Default is continuing or would result therefrom, and subject to Section 2.12(a), any other Asset Sale (other than an Asset Sale in respect of a Mortgaged Vessel or Stock in a Mortgaged Vessel Owning Subsidiary or any Asset Sale of all or any portion of the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qTechnology Business) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28Fair Market Value, at least 75% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredis payable in cash, calculated on a pro forma basis for Cash Equivalents or Specified Other Consideration upon such sale or other disposition) during the term sale. For purposes of this Agreement;
clause (r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock ing), or Indebtedness or other securities of“Specified Other Consideration” shall mean, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyanceany Asset Sale, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created i) Non-cash Consideration identified by the Collateral Documents, and Parent to the Administrative Agent is authorized to take in writing as being “Specified Other Consideration” for such Asset Sale and shall take the amount thereof; provided that the amount of such Non-cash Consideration, together with the amount of Specified Other Consideration described in this clause (g) for all other Asset Sales after the Initial Utilization Date does not exceed $75,000,000.00; and (ii) in connection with any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower assets or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else property directly related to the contrary in the Loan DocumentsAmazon, the Borrower will notamount of any liabilities or other obligations of the Parent, and will not permit an Applicant or any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a other Restricted Subsidiary that is not a Loan Party (including expressly assumed by the transferee of any Unrestricted Subsidiary).such assets or property;
Appears in 1 contract
Samples: Letter of Credit Agreement (McDermott International Inc)
Sale of Assets. The No Loan Parties (other thanParty shall, subject to Section 7.14, Parent) will not, and will not nor shall it permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Borrower, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock Equipment or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales Real Estate that has become obsolete or other dispositions is replaced in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss is no longer necessary in or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, Borrower and its Subsidiaries in the case ordinary course of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiarybusiness;
(pc) assignments and licenses of intellectual property of the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its termsthe ordinary course of business;
(qd) any Asset Sale to the Borrower or any Debtor;
(e) any Asset Sale of all or any part of the Excluded Joint Venture or the Excluded JV Equity;
(f) sales or dispositions permitted under Section 8.7;
(g) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (g), (i) the sale aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $500,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, Section 2.8;
(h) a true lease or other disposition for fair market value sublease of Real Estate pursuant to Property that (i) does not constitute Indebtedness, (ii) does not constitute a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (yiii) 28% of Consolidated EBITDA (for is expressly permitted pursuant to the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term terms of this Agreement;
(ri) the sale or disposition of personal property (other than Inventory) of the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) to the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses Excluded Joint Venture consummated in connection with managing the Excluded Joint Venture in the ordinary course of business. To business and consistent with past practices, in an aggregate amount not to exceed $1,000,000;
(j) transfers of condemned property as a result of the extent the Required Lenders (exercise of “eminent” domain or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect other similar policies to the conveyancerespective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), sale, lease, assignment and transfers of properties or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than assets that have been subject to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else casualty to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer respective insurer of Material IP owned by a Loan Party to Parent such property as part of an insurance settlement; and
(k) sales or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)dispositions disclosed on Schedule 8.4.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guarantee Agreement (Us Concrete Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries other Group Member to, sell, convey, selltransfer, lease, assign, transfer sub-lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "ASSET SALE"), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into third parties in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock or stock equivalents) inventory, consistent with past practices, by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party; PROVIDED, useful HOWEVER, that the consideration therefor is payable in cash or Cash Equivalents and actually paid within 90 days of the date of such Asset Sale or such longer period reasonably acceptable to the business Administrative Agents in order for the applicable parties to comply with any Requirements of such Restricted SubsidiaryLaw;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qc) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for equipment which financial statements have been delivered, calculated on a pro forma basis for such sale has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses are replaced in the ordinary course of business. To ; PROVIDED, HOWEVER, that the extent aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $1,000,000;
(d) the Required Lenders (sale or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of parts and equipment for Fair Market Value by any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a any Subsidiary that is not a Loan Party; PROVIDED, HOWEVER, that (A) the consideration therefor is payable in cash or Cash Equivalents and (B) the aggregate Fair Market Value of all such parts and equipment disposed of in any Fiscal Year shall not exceed $3,000,000;
(e) the discounting of letters of credit issued to support Accounts of any Foreign Borrower or Foreign Guarantor which were issued by a commercial bank not acceptable to the Foreign Administrative Agent (and therefore such Accounts are not deemed to be "Eligible Foreign Receivables");
(f) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(g) assignments and licenses of Intellectual Property of the Group in the ordinary course of business; 116
(h) any Asset Sale to a Loan Party;
(i) any Asset Sale by a Group Member which is not a Loan Party to a Loan Party or another Group Member which is not a Loan Party;
(including j) Asset Sales set forth on Schedule 8.4 (PLANNED ASSET SALES); PROVIDED that the Net Cash Proceeds of such Asset Sales are applied in the manner set forth in such Schedule; and
(k) as long as no Default or Event of Default is continuing or would result therefrom, the Permitted Property Sales and any Unrestricted Subsidiaryother Asset Sale for Fair Market Value, payable in cash upon such sale; PROVIDED, HOWEVER, that with respect to any such sale pursuant to this paragraph (k), (i) the relevant Obligors' Agent shall (x) provide the relevant Administrative Agent with reasonable prior notice of each such Asset Sale and (y) deliver certified copies of the agreements in respect of each such Asset Sale and (ii) all Net Cash Proceeds of such Asset Sale are applied to the prepayment of the Obligations to the extent required by Section 2.9 (MANDATORY PREPAYMENTS).
Appears in 1 contract
Sale of Assets. The Loan Parties Borrower shall not nor shall it permit any Subsidiary of the Borrower to, sell, convey, transfer, lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person or permit or suffer any other thanPerson to acquire any interest in any of their respective assets, subject to Section 7.14, Parent) will not, and will not nor shall the Borrower permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer to issue or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents, surplusInventory, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory customer premise equipment and fiber optic cable, in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patentseach case, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock Equipment that has become obsolete or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions is replaced in the ordinary course of business business; provided, however, that the aggregate Fair Market Value of extension all such equipment disposed of trade credit, including defaulted or past due receivablesin any Fiscal Year shall not exceed $500,000;
(hc) disposition a true lease or sublease of assets as Real Property not constituting Indebtedness and not constituting a result of a casualty loss or condemnation proceeding;sale and leaseback transaction; CREDIT AGREEMENT KNOLOGY, INC.
(id) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales assignments and other dispositions licenses of assets by intellectual property of the Borrower and its Restricted Subsidiaries which are made in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor;
(f) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale (including in the form of a sale and leaseback transaction) for fair market value Fair Market Value, payable at least 75% in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (as reasonably determined by the Borrowerf), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(hthe aggregate consideration received (x) or 8.1(i) during any Fiscal Year for all such Asset Sales shall exist or result therefrom, and not exceed $10,000,000 (ii) not less than 75provided that up to 100% of the aggregate sales price amount in this clause (x), if not received in the Fiscal Year for which it is permitted, may be carried over for receipt in the next succeeding Fiscal Year; provided, further, that consideration received in any Fiscal Year shall be deemed received, first, in respect of the amounts permitted for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)Fiscal Year and, (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties orsecond, in respect of amounts carried over from the case of any such trade-ins prior Fiscal Year) or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this AgreementAgreement shall not exceed $20,000,000 for such Asset Sales and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, Section 2.9 (Mandatory Prepayments);
(rg) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryCerritos Sale; and
(sh) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses any Asset Sale in the ordinary course form of business. To a divestiture of assets acquired after the Closing Date either in connection with a Permitted Acquisition or an Investment permitted by clauses (f) or (i) of Section 8.3 (Investments); provided, however, an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent the Required Lenders required by, Section 2.9 (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Knology Inc)
Sale of Assets. The Loan Parties No Credit Party shall, nor shall it permit any of its Subsidiaries to, sell, convey, or otherwise transfer any of its Property (including, without limitation, any working interest, overriding royalty interest, production payments, net profits interest, royalty interest, or mineral fee interest) other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer so long as no Default exists or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptwould result therefrom:
(ai) the sale of Hydrocarbons or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Liquid Investments in the ordinary course of business;,
(fii) any sale Asset Sales of any property equipment that is (other than their own stock A) obsolete, worn out or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions uneconomic and disposed of in the ordinary course of business, (B) no longer necessary for the business of extension such Person or (C) contemporaneously replaced by equipment of trade credit, including defaulted at least comparable value and use,
(iii) Asset Sales of Property between or past due receivablesamong Credit Parties;
(hiv) disposition Asset Sales of assets as a result Oil and Gas Properties which are not attributable to Proven Reserves and which is not Collateral or which is not otherwise required pursuant to the terms of a casualty loss or condemnation proceedingthis Agreement to be Collateral;
(iv) Investments made in accordance with subject to the provisions of the last paragraph of this Section 7.4;
6.8, the Asset Sale of Oil and Gas Properties which are attributable to Proven Reserves; provided that, (jA) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets the consideration received by the Borrower Credit Party in respect of such Asset Sale shall be cash, cash equivalents, or shall be attributable to Oil and its Restricted Subsidiaries which are made for Gas Properties classified as Proven Reserves, (B) the consideration received in respect of such Asset Sale shall be equal to or greater than the fair market value of such Oil and Gas Properties, interest therein or Subsidiary subject of such Asset Sale (as reasonably determined by the Borrower), so long (i) no Event board of Default under Section 8.1(a), 8.1(b), 8.1(h) directors or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary equivalent governing body of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of its own Qualified Capital Stock a Responsible Officer of the Borrower certifying to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreementthat effect) and (iiiC) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of if any such trade-ins or exchanges Asset Sale is of assets of any Restricted a Subsidiary that is not a Loan Partyowning Oil and Gas Properties, useful to such Asset Sale shall include all the business Equity Interests of such Restricted Subsidiary;
(pvi) subject to the provisions of the last paragraph of this Section 6.8, the Asset Sale of Hedging Arrangements; provided that, (A) 100% of the consideration received in respect of such Asset Sale shall be cash or cash equivalents or other Hedging Arrangements, (B) the Borrower and its Restricted Subsidiaries may terminate consideration received in respect of such Asset Sale shall be equal to or unwind any Hedging Transaction in accordance with its terms;
(q) greater than the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryHedging Arrangements; and
(svii) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course Asset Sales of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 Property (other than Oil and Gas Properties or Hedging Arrangements) not to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take exceed $1,000,000 during any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreementfiscal year. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentsforegoing, the Borrower will not, and will not permit any Subsidiary other Credit Party to, permit consummate any transfer of Material IP owned by a Loan Party Disposition if after giving effect to Parent or a Subsidiary that is such material Disposition, the Borrower would not a Loan Party (including any Unrestricted Subsidiary)be in pro forma compliance with Section 6.21.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Triangle Petroleum Corp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assignsecuritize, transfer exchange or otherwise dispose of of, any of its assets, business assets or property or, in any interest therein (including the case sale or factoring at maturity or collection of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, accounts) to any Person, or permit or suffer any other Person other than the Borrower or a Guarantor to acquire any interest in any of its assets (other than Parent) (or to qualify directors if required by applicable lawany such disposition being an "Asset Sale"), except:
(a) the sale or other disposition of immaterial, surplus, obsolete inventory or worn out property or other property not necessary for operationsequipment in the ordinary course of business (including pursuant to the implementation of joint sales agreements);
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower equipment which have become obsolete or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into replaced in the ordinary course of business;
(fc) any the lease or sublease of real property not constituting a sale of any property and leaseback (other than their own stock or stock equivalents) a sale and leaseback permitted by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted InvestmentSection 8.6);
(gd) settlements, write-offs, discount, sales or other dispositions in the ordinary course assignments and licenses of business intellectual property of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To ;
(e) any Asset Sale to the Borrower or any Subsidiary Guarantor (except any Asset Sale made by the Restricted License Subsidiary);
(f) as long as no Default or Event of Default is continuing or would result therefrom, any Pre-Approved Securitization Transaction for Fair Market Value;
(g) as long as no Default or Event of Default is continuing or would result therefrom, any Pre-Approved Station Sale for Fair Market Value; provided, that the aggregate consideration payable to the Borrower or its Subsidiaries in respect of such Asset Sale is not less than 75% in cash;
(h) as long as no Default or Event of Default is continuing or would result therefrom, any Spectrum License Sale for Fair Market Value, payable at least as to 75% in cash upon such sale, provided, that the Net Cash Proceeds of such Asset Sale are applied to the prepayment of the Obligations to the extent required by Section 2.8;
(i) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable as to 75% in cash upon such sale; provided, however, that with respect to any such sale pursuant to this clause (i) all Net Cash Proceeds of such Asset Sale are applied to the Required Lenders prepayment of the Obligations to the extent required by Section 2.8; and
(j) as long as no Default or all LendersEvent of Default is continuing or would result therefrom, any Asset Swap, provided, that (i) the Borrower shall have given the Administrative Agent prior notice thereof, (ii) the consideration received by the Borrower or any of its Subsidiaries therefor shall be at least equal to the Fair Market Value of the assets transferred by it pursuant to such Asset Swap, (iii) if required under Section 10.2) waive and to the extent that the Borrower or any of its Subsidiaries receives consideration for the assets transferred by it pursuant to such Asset Swap that is in addition to the Equivalent Assets received in exchange therefor, such Asset Swap shall be permitted only if the provisions of this Section 7.6 Sections 2.8(a) and 8.4(i) shall be complied with respect in connection therewith and (iv) no Asset Swap shall be permitted in any Fiscal Year if, after giving effect thereto, the Station Value attributable to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested all assets transferred by the Borrower and its Subsidiaries pursuant to Asset Swaps during such Fiscal Year shall be equal to or greater than 10% of the aggregate Station Value as of the first day of such Fiscal Year (or, in order to effect and/or evidence respect of the Fiscal Year ending December 31, 2001, as of the Closing Date); provided, however, that (notwithstanding the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else ) prior to the contrary repayment in full of the Loan DocumentsSub-Portion, the Borrower will not, and will Restricted License Subsidiary shall not permit make an Asset Sale of any Subsidiary to, permit any transfer FCC License if the principal outstanding amount of Material IP owned the Loan Sub-Portion exceeds or would (as a result thereof) exceed 33% of the portion of Station Value which is solely attributable to the value of all FCC Licenses held by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted the Restricted License Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will not nor shall it permit any Subsidiary of the Borrower to, sell, convey, transfer, lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its their respective assets, business or property or, in the case of any Restricted Subsidiary, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements property or assets that have been delivered, calculated on a pro forma basis for such sale become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses are replaced in the ordinary course of business. To the extent the Required Lenders ;
(c) (i) a true lease or all Lenderssublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction, if required in each case as permitted under Section 10.28.15 (Operating Leases; Sale/Leasebacks);
(d) waive assignments and licenses of intellectual property of the provisions Borrower and its Subsidiaries in the ordinary course of this Section 7.6 business;
(e) any Asset Sale to the Borrower or any Guarantor; and
(f) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash or Cash Equivalents upon such sale; provided, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such Asset Sale pursuant to this Section 7.6 clause (other than to a Loan Party (other than Parent)f), (i) the aggregate consideration received during any Fiscal Year for all such Collateral Asset Sales shall automatically be deemed sold free not exceed $10,000,000 and clear (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Liens created by the Collateral DocumentsObligations as set forth in, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentsextent required by, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party Section 2.9 (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Edo Corp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will notNeither Holdings nor the Borrower shall, and will not neither shall permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's stock or hereafter acquired, to stock equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "ASSET SALE"), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that the aggregate Fair Market Value of all such equipment disposed of in any fiscal year shall not exceed $1,000,000;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Required Lenders Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to the Borrower or all Lendersany Subsidiary Guarantor; and
(f) as long as no Default or Event of Default is continuing or would result therefrom, if required under Section 10.2) waive the provisions of this Section 7.6 any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such sale pursuant to this Section 7.6 (other than to a Loan Party (other than Parent)9.08(f), such Collateral the aggregate consideration received for the sale of all assets sold during any Fiscal Year shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, not exceed $20,000,000 and the Administrative Agent is authorized net cash proceeds from such Asset Sale are applied, within 365 days of such Asset Sale, to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower permanently prepay Indebtedness or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary reinvest in the Loan Documents, the Borrower will not, business of Holdings and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)its Subsidiaries.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) Loan Party (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operationsoperations or no longer useful in the business disposed of in the ordinary course of business;
(b) the sale or other disposition of inventory and Permitted Investments in the ordinary course of business;
(c) the disposition of equipment or real property to the extent that (i) inventory such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) (i) the non-exclusive license or sublicense, conveyance, sale or other transfer of intellectual property in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
Parties or pursuant to the Tradename Licensing Agreement; and (dii) the sale, assignment, transfer or lapse or abandonment (including failure to maintain) of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights which, in the reasonable good faith determination of the Borrower or any of its Subsidiaries, is uneconomical to maintain, negligible, obsolete or otherwise not material in the conduct of its business (it being understood and agreed that are immaterial no intellectual property that is material to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintainmay be disposed of in reliance on this Section 7.6(d));
(e) a lease, sublease, license the disposition of cash or other similar use or occupancy agreement of real property not constituting Indebtedness entered into cash equivalents in the ordinary course of business;
(f) any sale the termination or assignment of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to leased office locations in the extent any resulting Investment constitutes a Permitted Investmentordinary course of business;
(g) settlements, write-offs, discount, sales or other dispositions the disposition of accounts receivable in the ordinary course of business of extension of trade credit, including defaulted in connection with the collection or past due receivablescompromise thereof;
(h) the sale or other disposition of such assets as a result in an aggregate amount based on the fair market value of a casualty loss such assets not to exceed $15,000,000 (or condemnation proceedingafter the consummation of the Specified Acquisition, $22,500,000) in any Fiscal Year (with any unused amounts in any Fiscal Year carried forward to the immediately succeeding Fiscal Year);
(i) Investments made in accordance with Section 7.4;
so long as no Event of Default exists or would result therefrom, a Disposition of the Specified Acquisition Real Property pursuant to a Specified Sale Leaseback Transaction; provided that (ji) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made such Disposition shall be for fair market value in a bona fide arm’s length transaction (as reasonably determined by in the good faith judgment of the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) the proceeds of such Disposition shall not exceed $150,000,000 in the aggregate, (iii) the Borrower shall be in pro forma compliance with each of the covenants set forth in Article VI as of the most recently ended Test Period (calculated on a Pro Forma Basis) and (iv) the Borrower or any of its Subsidiaries shall receive not less than 75% of the aggregate sales price for consideration from such sale Disposition in the form of cash or cash equivalents;
(j) assets disposed of in connection with condemnation, eminent domain or insurance claims;
(k) dispositions of property by the Borrower or any Subsidiary to the Borrower or any other Subsidiary (including any such disposition shall effected pursuant to a merger, amalgamation, consolidation, liquidation or dissolution); provided that if the transferor of such property is a Loan Party then the transferee thereof must either be paid in casha Loan Party or, to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.3 and any Indebtedness corresponding to such Investment must be permitted by Section 7.1;
(l) Liens permitted under Section 7.2leases, subleases, licenses or sublicenses of property (other than intellectual property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries taken as a whole;
(m) (i) any sale or issuance by the Borrower dispositions of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)Investments in joint ventures, (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Propertyrequired by, such Capital Stock is pledged as Collateral or made pursuant to buy/sell arrangements between the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law joint venture parties as set forth in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by relevant documents governing such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdingsjoint ventures;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses litigation claims in the ordinary course of business. To ;
(o) the extent termination of any Hedging Obligation;
(p) [reserved];
(q) asset sales or other dispositions to Persons that are not the Required Lenders Borrower or a Subsidiary Loan Party (it being understood and agreed that no intellectual property that is material to the business of the Borrower and its Subsidiaries may be disposed of in reliance on this Section 7.6(q)); provided that, (i) at the time of such sale or other disposition, no Event of Default then exists or would arise therefrom, and (ii) the Borrower or any of its Subsidiaries shall receive not less than 75% of such consideration in the form of (x) cash or Permitted Investments or (y) real property (and improvements thereon related to one or more healthcare facilities) acquired in an exchange pursuant to or intended to qualify under Section 1031 (or all Lendersany successor section) of the Code (it being understood that for the purposes of clause (f)(ii)(x), if required under Section 10.2the following shall be deemed to be cash: (A) waive any liabilities (as shown on the provisions Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of this Section 7.6 the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the conveyanceapplicable sale or disposition and for which all of its Subsidiaries shall have been validly released by all applicable creditors in writing, sale(B) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable disposition and (C) any Designated Non-Cash Consideration received in respect of such disposition having an aggregate fair market value, leasetaken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, assignment not in excess of $10,000,000, with the fair market value of each item of Designated Non-Cash Consideration being measured at such date of receipt or other disposition of any Collateralsuch agreement, or any Collateral is sold as applicable, and without giving effect to subsequent changes in value); and (r) dispositions (i) permitted by this Section 7.6 7.3 and Section 7.5, (other than to a Loan Party ii) constituting Investments permitted by Section 7.4 or (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the iii) constituting Liens created permitted by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Section 7.2.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) it will not, and nor will not permit it allow or suffer any of their Restricted Subsidiaries the other Credit Parties to, convey, sell, leasealienate, assign, transfer lease or otherwise dispose of any of its property and assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or possessed or hereafter acquiredacquired or possessed, or enter into any sale and leaseback transaction with respect to any Person such property or assets, or grant any option or other than the Borrower right to purchase, lease or a Guarantor (other than Parent) (otherwise acquire any such property or to qualify directors if required by applicable law)assets, exceptsave for:
(a) the sale sales, alienations, assignments, leases or other disposition dispositions of immaterial, surplus, obsolete or worn out property or and assets of the Borrowers and the other property not necessary for operations;
(b) the sale or other disposition of (i) inventory Credit Parties in the ordinary course of business and for the purpose of carrying on the same,
(iib) Permitted Investments;sales, alienations, assignments, leases or other dispositions of property and assets among Xxxxxxx, CII and/or ICI,
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering transactions outlined in any material respect with the ordinary conduct of the business of the Loan Parties;SCHEDULE "O",
(d) sales, alienations, assignments, leases or other dispositions by the saleBorrowers and the other Credit Parties during any period of 12 consecutive months, assignment, transfer of assets having an aggregate book value or lapse or abandonment market value (whichever is greater) of any registrations or applications for registration up to 10% of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business Tangible Net Assets (computed as of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;end of such period of 12 months), and
(e) a leasesales, subleasealienations, license or assignments, leases and other similar use or occupancy agreement disposition (including, by way of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) clarification, any sale of any property (other than their own stock or stock equivalentsexpropriation) by the Borrowers and the other Credit Parties during any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementsperiod of 12 consecutive months, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result (including, by way of a casualty loss clarification, Capital Stock) having an aggregate book value or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined whichever is greater) in excess of 10% of Tangible Net Assets, PROVIDED THAT, at the latest on the last day of each such period of 12 consecutive months, (I) the net proceeds of all such transactions in excess of 10% of Tangible Net Worth in such period of 12 consecutive months (the "EXCESS PROCEEDS") shall be used by the Borrower)Credit Parties to purchase assets of equivalent value, so long or (iII) no Event failing such purchase of Default under Section 8.1(a)replacement assets with all of the said Excess Proceeds, 8.1(b)the Term Facility Total Commitment and the Revolving Facility Total Commitment shall, 8.1(h) or 8.1(i) shall exist or result therefromon the last day of the said 12 month period, be permanently reduced and cancelled (in the following order: FIRSTLY, the Term Facility Total Commitment, in inverse order of maturity, until reduced to zero and fully terminated, and (iiSECONDLY, the Revolving Facility Total Commitment) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant an amount equal to the Guaranty and Security Agreement), (ii) any sale Excess Proceeds or issuance by any Restricted Subsidiary such portion thereof which has not been used to purchase replacement assets within the said period of 12 months. In the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to event that the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary Term Facility Total Commitment or the BorrowerRevolving Facility Total Commitment are reduced as aforesaid, any sale or issuance by the Borrowers shall timely make all necessary repayments of Borrowings hereunder so as to ensure that Borrowings outstanding under the Term Facility and the Revolving Facility never exceed the Term Facility Total Commitment and the Revolving Facility Total Commitment as so reduced; and Xxxxxxx shall periodically provide reports on such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parenttransactions as set forth in Section 11.1.7(c);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Such Loan Parties (other than, subject to Section 7.14, Parent) Party will not, and will not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "Asset Sale"), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale of any property asset or assets by Group or any of its Subsidiaries as long as (i) the purchase price paid to Group or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (ii) no less than 100% of the purchase price for such asset shall be paid to Group or such Subsidiary in cash, (iii) such sale does not require consent under applicable corporate law or approval from the Bankruptcy Court, unless, in the case of Bankruptcy Court approval, such consent or approval has been obtained, (iv) neither the seller of such assets nor any of its Affiliates shall have any subsequent payment obligations in respect of such sale, other than their own stock customary and standard indemnity obligations, (v) no Default or stock equivalentsEvent of Default has occurred and is continuing or would result from such sale, and (vi) by the aggregate purchase price paid to Group and all of its Subsidiaries for all assets sold pursuant to this clause (b) shall not exceed $15,000,000 in the aggregate;
(c) transfers of assets from (i) any Restricted Foreign Subsidiary or any Loan Party to any Loan Party, (ii) any Foreign Subsidiary to any other Foreign Subsidiary, and (iii) any Loan Party (other than Parent) to any Foreign Subsidiary, provided that the extent any resulting Investment constitutes a Permitted Investmentaggregate fair market value of assets sold, leased, transferred or otherwise disposed of to Foreign Subsidiaries from Loan Parties shall not exceed $1,000,000 in the aggregate;
(gd) settlementsthe licensing or sublicensing of trademarks and trade names by Group or any of its Subsidiaries (i) for an initial term not in excess of 7 years and (ii) in respect of which the aggregate up front payments and minimum guaranteed royalties are not in excess of $5,000,000 for any transaction or $25,000,000 in the aggregate for all such transactions; provided, writehowever, that any such licensing to a party other than a Loan Party shall take place on an arm's-offslength basis;
(e) the rental by Group and its Subsidiaries, discountas lessors or sub-lessors, sales or other dispositions in the ordinary course of business their respective businesses, on an arm's-length basis, of extension of trade creditreal property and personal property, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted each case under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party leases (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than ParentCapitalized Leases);
(of) trade-ins the sale or other exchanges disposition of tangible assets for other tangible assets of comparable machinery and equipment no longer used or greater value useful to in the business of the Loan Parties orGroup or any of its Subsidiaries; and
(g) any Asset Sale permitted by Section 8.6. provided, however, that in the case of any such trade-ins or exchanges sales of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of clause (x) $20,000,000 b), and (yf) 28% above, Group shall, on the date of Consolidated EBITDA (for receipt by it or any of its Subsidiaries of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for Net Cash Proceeds from such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than pay such Net Cash Proceeds to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized pursuant to take and shall take Section 2.9 hereof for application to the Obligations to the extent required under such Section; provided further, that the foregoing limitations are not intended to prevent any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided from rejecting unexpired leases or executory contracts pursuant to section 365 of the Administrative Agent a certificate confirming compliance Bankruptcy Code in connection with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Cases.
Appears in 1 contract
Samples: Revolving Credit Agreement (Warnaco Group Inc /De/)
Sale of Assets. The Loan Parties Borrower shall not, nor shall it cause or permit any Subsidiary (other thanthan LaserMaster Europe) thereof to, subject to Section 7.14sell, Parent) will not, and will not permit any of their Restricted Subsidiaries totransfer, convey, sell, lease, assign, transfer assign or otherwise dispose of any of its properties or other assets, business or property or, in including the case capital stock of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor Subsidiary (other than ParentLaserMaster Europe) or Borrower or any of their Accounts, other than (or to qualify directors if required by applicable law), except:
(ai) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
, (fii) any sale the sale, transfer, conveyance or other disposition of any property assets (other than their own stock or stock equivalentsany Collateral) by having a value not exceeding $500,000 in the aggregate in any Restricted Subsidiary to any Loan Party Fiscal Year, (other than Parentiii) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementssale, write-offstransfer, discount, sales conveyance or other dispositions disposition of obsolete or redundant assets, (iv) the sale, transfer, conveyance or other disposition of any Intellectual Property at any time prior to such Intellectual Property being released, if at all, by the Agent pursuant to Section 11.16 having a value not exceeding $300,000 in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made aggregate in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), any Fiscal Year so long as (iA) no default or Event of Default under Section 8.1(a)has occurred and is continuing, 8.1(b)(B) each such sale, 8.1(h) or 8.1(i) shall exist or result therefromtransfer, and (ii) not less than 75% of the aggregate sales price for such sale conveyance or other disposition shall be paid subject to an irrevocable (while the Obligations remain outstanding and this Agreement has not been terminated), royalty-free license or sublicense, in cash;
(l) Liens permitted under Section 7.2;
(m) (i) each case subject to any sale or issuance existing royalty payable to the existing licensor, executed by the Borrower purchaser thereof in favor of its own Qualified Capital Stock Agent and Lenders, in form and substance satisfactory to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)Agent, (iiC) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long assuch sale, except to the extent constituting Excluded Propertytransfer, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale conveyance or other disposition is for consideration consisting solely of cash and such consideration received is at least equal to the fair market value of Real Estate pursuant such assets as determined by the board of directors of Borrower and (D) such sale, transfer, conveyance or other disposition is to a Sale and Leaseback Transaction in Person which is not, directly or indirectly, an aggregate amount not exceed the greater Affiliate of (x) $20,000,000 Borrower or an employee, officer or director of Borrower or any of its Affiliates and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(rv) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, leasetransfer, assignment conveyance or other disposition of any CollateralIntellectual Property at any time after such Intellectual Property being released, if at all, by the Agent pursuant to Section 11.16 so long as (A) no Default or Event of Default has occurred and is continuing, (B) each such sale, transfer, conveyance or other disposition shall be subject to an irrevocable (while the Obligations remain outstanding and this Agreement has not been terminated), royalty-free license or sublicense, in each case subject to any existing royalty payable to the existing licensor, executed by the purchaser thereof in favor of Agent and Lenders, in form and substance satisfactory to Agent, (C) such consideration received is at least equal to the fair market value of such assets as determined by the board of directors of Borrower and (D) such sale, transfer, conveyance or other disposition is to a Person which is not, directly or indirectly, an Affiliate of Borrower or an employee, officer or director of Borrower or any Collateral is sold as of its Affiliates. With respect to any disposition of assets or other properties permitted by pursuant to this Section 7.6 (6.8, Agent agrees on reasonable prior written notice to release its Lien on such assets or other than properties in order to a Loan Party (other than Parent)), permit Borrower to effect such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take disposition and shall take any actions execute and deliver to Borrower, at Borrower's expense, appropriate UCC-3 termination statements and other releases as reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Borrower.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of of, any of its assets, business or property property, whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, common stock to any Person other than the Borrower or a Guarantor (other than Parent) Subsidiary Loan Party (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition for fair market value of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition operations disposed of (i) inventory in the ordinary course of business other than leases and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) the sale of inventory and Permitted Investments in the ordinary course of business;
(c) subject to the mandatory prepayment requirements of Section 2.13, the sale of the MxXxxx Property;
(d) (i) a true lease or sublease of real property not constituting Indebtedness and not entered into as part of a sale and leaseback transaction and (ii) a sale of property pursuant to a sale and leaseback transaction; provided, however, that the aggregate fair market value (measured at the time of the applicable sale) of all property covered (x) by all outstanding sale and leaseback transactions at any time shall not exceed $1,000,000 or (y) by any single outstanding sale and leaseback transaction shall not exceed $500,000;
(i) any sale of any property (other than their own stock by the Borrower or stock equivalentsany Subsidiary to the Borrower or any Subsidiary, subject to the provisions of Section 7.7, and(ii) any Restricted Payment by any Restricted Subsidiary permitted pursuant to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(kf) sales and other dispositions of assets the abandonment or non-renewal by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant Intellectual Property assets which the Borrower has reasonably determined are not, either individually or collectively material to the Guaranty and Security Agreement)business, (ii) any sale operations or issuance by any Restricted Subsidiary prospects of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;; and
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qg) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction the assets set forth on Schedule 7.6(g); and
(h) the sale or other disposition of other assets in an aggregate amount not to exceed the greater of (x) $20,000,000 and (y) 285% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term consolidated assets of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell in any Capital Stock inFiscal Year, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses as determined on a consolidated basis in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 accordance with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)GAAP.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Each of Group and the Borrower will not, and will not permit any of their Restricted its respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any Accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted SubsidiarySubsidiary of Group, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale of any property asset or assets (other than their own stock or stock equivalentsincluding, without limitation, a Subsidiary’s Stock) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets Warnaco Entity as a result of a casualty loss or condemnation proceeding;
long as (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions the purchase price paid to such Warnaco Entity for such asset shall be no less than the Fair Market Value of assets by such asset at the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower)time of such sale, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not no less than 75% of the aggregate sales purchase price for such sale or other disposition asset shall be paid in cashcash and the remaining amount paid in notes receivable (provided that in the case of an Asset Sale consummated when no Loan or Loans or unreimbursed amounts in respect of drawn Letters of Credit are outstanding (Loan, Loans and Letters of Credit being used in this proviso as defined in each of this Agreement and the Canadian Facility), 50% of the purchase price for such asset may be paid in cash and the remaining amount paid in notes receivable) (which notes receivable shall be in form and substance reasonably satisfactory to the Administrative Agent), (iii) neither the seller of such assets nor any of its Affiliates shall have any subsequent payment obligations in respect of such sale, other than customary and standard indemnity obligations and as set forth in subclause (ii) above, (iv) no Default or Event of Default has occurred
(1) the Borrower shall prepay the Loans (first the Swing Loans until paid in full and then the Revolving Loans) promptly upon receipt of such net cash proceeds in the amount of all net cash proceeds received from time to time (including in respect of any note receivable) with respect to the sale that resulted in such excess occurring and all subsequent sales of assets by any Loan Party pursuant to this clause (b) during such calendar year and (2) with respect to the sale that resulted in such excess occurring and each subsequent sale of assets by any Loan Party pursuant to this clause (b) during such calendar year which results in net cash proceeds in excess of $500,000, the Borrower shall deliver to the Administrative Agent, no later than the date of such sale, a Borrowing Base Certificate as of the Business Day immediately preceding the date of such sale executed by a Responsible Officer of Group giving pro forma effect to such sale, which Borrowing Base Certificate shall show that the aggregate principal amount of Revolving Credit Outstandings does not exceed the Maximum Credit at such time(for purposes of this clause (v), net cash proceeds of an asset sale means proceeds of such asset sale received from time to time (including a payment on a note receivable) in cash or Cash Equivalents net of (x) the reasonable cash costs of sale, (y) taxes paid or payable as a result thereof and (z) any amount required to be paid or prepaid on Indebtedness (other than the Obligations) secured by a perfected Lien on the assets subject to such asset sale);
(lc) Liens permitted under Section 7.2;
(m) transfers of assets from (i) any sale or issuance by the Borrower of its own Qualified Capital Stock Loan Party to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)any other Loan Party, (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary Warnaco Entity that is not a Loan Party, useful to provided that the business aggregate Fair Market Value of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate assets sold, leased, transferred or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value otherwise disposed of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of this subclause (xii) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else pursuant to the contrary next proviso of this subclause (ii)) shall not exceed $20,000,000 in the Loan Documents, aggregate plus the Borrower will not, Fair Market Value of any equipment and will not permit any Subsidiary to, permit any transfer of Material IP inventory owned on the Closing Date by a Loan Party in connection with its domestic manufacturing operations that are subsequently transferred to Parent a Foreign Subsidiary, and provided further that the Loan Parties may transfer the Xxxxxx Xxxxx Underwear trademark and/or rights to use such trademark to one or more Warnaco Entities that are not Loan Parties so long as (A) each such transfer shall be on arm’s-length terms and the price paid to the transferring Loan Parties shall be no less than the Fair Market Value of such trademark at the time of such transfer, (B) each such transfer is for cash, Cash Equivalents and/or a Subsidiary note (such note to be on arm’s-length terms at a market interest rate and otherwise reasonably acceptable to the Administrative Agent and pledged to the Collateral Agent for the benefit of the Secured Parties), (C) no Default or Event of Default has occurred and is continuing at the time of such transfer or would result from such transfer and (D) the transferee of such trademark shall have entered into an agreement on terms reasonably satisfactory to the Administrative Agent pursuant to which such transferee agrees that the Collateral Agent may dispose of Inventory utilizing such trademark without restriction or royalty payment to the transferee, and (iii) any Warnaco Entity that is not a Loan Party to any other Warnaco Entity;
(including d) the licensing or sublicensing of trademarks and trade names by any Unrestricted SubsidiaryWarnaco Entity; provided that (i) if the licensing or sublicensing is by a Loan Party, if the applicable trademark or trade name has generated sales in excess of $20,000,000 in the prior fiscal year, such license or sublicense (x) shall not have an initial term in excess of 7 years and (y) shall not have aggregate up-front payments and minimum guaranteed royalties in excess of $7,500,000 or, together with the aggregate up-front payments and minimum guaranteed royalties for all other such licenses and sublicenses, in an aggregate amount in excess of $25,000,000 and (ii) any such licensing or sublicensing to a Person other than a Loan Party shall take place on an arm’s-length basis;
(e) the rental by the Warnaco Entities, as lessors or sub-lessors, in the ordinary course of their respective businesses, on an arm’s-length basis, of real property and personal property, in each case under leases (other than Capital Leases);
(f) the sale or disposition of machinery and equipment no longer used or useful in the business of the Warnaco Entities;
(g) any sale of fixed assets not in connection with a Sale and Leaseback Transaction that were purchased in connection with a proposed lease financing transaction within 45 days of such Asset Sale, which assets are subsequently leased back by the Borrower or one of its Subsidiaries;
(h) any Asset Sale permitted by Section 8.7;
(i) any Asset Sale in connection with a Sale and Leaseback Transaction permitted pursuant to Section 8.16(b); and
(j) the sale of any asset listed on Schedule 8.4.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and nor will not it permit any of their Restricted Subsidiaries Subsidiary to, convey, sell, lease, assign, transfer sell or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, Property to any other Person other than the Borrower or (including to a Guarantor (other than Parent) (or Delaware Divided LLC pursuant to qualify directors if required by applicable lawa Delaware LLC Division), except:
(a) Sales of inventory in the sale or other disposition Ordinary Course of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;Business.
(b) the sale Dispositions of used, worn-out, obsolete or other disposition of (i) inventory surplus Property or Property no longer used or useful in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries Subsidiaries, all in the Ordinary Course of Business.
(c) The sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or no longer commercially practicable the proceeds of such sale are applied with reasonable promptness to maintain;the purchase price of such replacement equipment.
(d) Dispositions of Cash Equivalent Investments.
(e) [Reserved].
(f) Dispositions of assets obtained through foreclosure or otherwise through the exercise of remedies in respect of obligations owed by a lease, sublease, license third party to the Borrower or other similar use any of its Subsidiaries or occupancy agreement otherwise in respect of real property not constituting Indebtedness mortgage loans insured by the Borrower or any of its Subsidiaries.
(g) Any disposition pursuant to a Reinsurance Agreement so long as such disposition is entered into in the ordinary course Ordinary Course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;Business consistent with industry practice.
(h) disposition Dispositions of assets as a result Investments for fair market value by any Regulated Insurance Company (other than equity interests of a casualty loss or condemnation proceeding;
(iSubsidiaries engaged in insurance lines of business) and dispositions for fair market value of Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets marketable securities by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined Subsidiaries, in each case in the Ordinary Course of Business and consistent with the investment policy approved by the Borrower)board of directors (or a committee thereof) of the Borrower or such Subsidiary, so long as applicable, or otherwise approved by the board of directors (or a committee thereof) of the Borrower or such Subsidiary, as applicable; provided that, at the time of such disposition, the Borrower is in compliance with the financial covenants set forth in Section 6.18.
(i) no Event Dispositions of Default under Section 8.1(a), 8.1(b), 8.1(haccounts or payment intangibles (each as defined in the Uniform Commercial Code) resulting from the compromise or 8.1(i) shall exist or result therefrom, and (ii) not settlement thereof in the Ordinary Course of Business for less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;full amount thereof.
(lj) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance Dispositions by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of by any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party to the Borrower or any Subsidiary (including any Unrestricted dispositions resulting from the liquidation or dissolution of a Subsidiary).
(k) Non-exclusive licenses or sublicenses, or leases or subleases, granted to any third parties in arm’s-length commercial transactions in the Ordinary Course of Business.
(l) Sales or issuances of equity interests (i) by a direct or indirect Wholly-Owned Subsidiary of the Borrower to the Borrower or to one or more Wholly-Owned Subsidiaries of the Borrower, (ii) by a non-Wholly-Owned Subsidiary of the Borrower to the respective equity holders of such non-Wholly-Owned Subsidiary, on a pro rata basis, or (iii) by any Subsidiary to any Loan Party.
(m) Any disposition by a Subsidiary resulting from the liquidation or dissolution of such Subsidiary in accordance with applicable law; provided that such Subsidiary’s assets (if any) are disposed to a Loan Party (or if such Subsidiary was not owned by a Loan Party, to the Subsidiary that is (or the Subsidiaries that are) its parents)) in connection with such liquidation or dissolution.
(n) Dispositions of mortgage-related assets, mortgage loans, receivables and other similar financial assets securing Mortgage Secured Financings and/or Securitization Indebtedness.
(o) Dispositions of other property having a fair market value not to exceed (i) in the aggregate for any fiscal year of the Borrower, 15% of the Consolidated Net Worth of the Borrower determined at the time of the disposition and (ii) in the aggregate from the Effective Date until the Facility Termination Date, 30% of the Consolidated Net Worth of the Borrower determined at the time of the disposition, in each case, the Consolidated Net Worth being calculated as of the fiscal period most recently ended prior to the date of such disposition for which financial statements have been delivered pursuant to Sections 6.1(a) or (b).
Appears in 1 contract
Samples: Credit Agreement (Radian Group Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, conveyConvey, sell, leaselease (other than a sublease of real property), assign, transfer or otherwise dispose of (including through a merger, consolidation or amalgamation of any Subsidiary) any of its assetsproperty, business or property orassets (including, in without limitation, other payments and receivables), whether owned on the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Closing Date or hereafter thereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale sales or other disposition dispositions of immaterialinventory in the ordinary course of business, surplus, obsolete or worn out property or other property not necessary for operationsand dispositions of cash and Cash Equivalents;
(b) that (i) Borrower or any Subsidiary of Borrower may sell, lease, transfer, or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to a Credit Party, (ii) any Non-Credit Party may sell, lease, transfer or otherwise dispose of any or all of its assets to any, other Non-Credit Party, (iii) Borrower or any Subsidiary of Borrower may sell or otherwise dispose of, or part with control of any or all of, the Capital Stock of any Subsidiary to a Credit Party, and (iv) Borrower or any Subsidiary Guarantor may transfer the Capital Stock of any Foreign Subsidiary to another Foreign Subsidiary, 65% of the Capital Stock of which has been pledged under the Security Documents to secure the Obligations; provided that no Person other than Borrower or a Subsidiary shall receive any consideration in connection with such transaction and all actions necessary or reasonably requested by the Administrative Agent shall be taken by the appropriate Credit Parties to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Administrative Agent pursuant to the Security Documents;
(c) leases of and subleases of Real Property; provided that in the case of any lease of Mortgaged Property, such lease shall be subject to the provisions of the applicable Mortgage;
(d) any Taking or Destruction affecting any property or assets;
(e) substantially like kind exchanges of real property or equipment; provided that any cash received by Borrower or any Subsidiary of Borrower in connection with such an exchange shall be deemed to be potential Net Proceeds subject to subsection 4.5(c) and, to the extent the real property or equipment subject to such exchange constituted Collateral under the Security Documents, then the property exchanged therefor shall be mortgaged or pledged contemporaneously with such exchange, as the case may be, for the benefit of the Secured Parties in accordance with subsection 7.8;
(f) the sale or other disposition of (i) inventory any property or asset that, in the ordinary course reasonable judgment of business Borrower has become surplus, uneconomic, obsolete or worn out, and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses which is sold or disposed of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale , the trade in of equipment for equipment in better condition or of better quality or the abandonment, allowance to lapse or other disposition of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) Intellectual Property that is no longer material to the extent business of Borrower or any resulting Investment constitutes a Permitted Investmentof its Restricted Subsidiaries;
(g) settlements, write-offs, discount, sales the sale or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of any property or assets as a result of a casualty loss or condemnation proceeding;
(iother than Material Intellectual Property) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long ; provided that (i) no Event the Consolidated EBITDA generated by or attributable to all such property or assets sold or disposed of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (iithis subsection 8.5(g) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other constitutes no more than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 2815% of Consolidated EBITDA (for determined as of the most recently ended four consecutive Fiscal Quarter fiscal quarter period for which financial statements have been delivereddelivered and calculated at the time of such asset sale) and (ii) at least 75% of the consideration for asset sales in excess of $1,500,000 consists of cash and Cash Equivalents;
(h) transactions permitted by subsection 8.4 (other than clause (a));
(i) Investments permitted by subsection 8.6, calculated on Restricted Payments pennitted by subsection 8.11 and Liens permitted by subsection 8.2;
(j) licenses or sublicenses (and the termination thereof) by Borrower or any of its Restricted Subsidiaries of software, Intellectual Property and general intangible and leases, licenses or subleases (and the termination thereof) of other property in the ordinary course of business and which do not materially interfere with the business of Borrower or any of its Restricted Subsidiaries;
(k) sales or other dispositions of Investments pennitted by subsection 8.6(i) for not less than fair market value or to the extent required by, or made pursuant to, customary buy-sell arrangements between the joint venture parties set forth in arrangements between the joint venture parties;
(l) sales, transfers and other dispositions, or the discount or forgiveness of accounts receivable or customer delinquent notes in connection with the compromise, settlement or collection thereof consistent with past practice or in the ordinary course of business and not for purposes of financing;
(m) dispositions of non-core assets acquired in connection with any Pennitted Acquisition;
(n) sales or dispositions of any asset not constituting Collateral;
(o) sales or dispositions of immaterial Capital Stock to qualify directors where required by applicable law or to satisfy similar requirements of applicable law with respect to the ownership of Capital Stock;
(p) sales, transfers, leases and other dispositions to Borrower or any Subsidiary, provided that any such sales, transfers, leases or other dispositions involving a pro forma Subsidiary that is not a Credit Party (other than pursuant to an intercompany license) shall be made in compliance with subsection 8.12 and otherwise no less favorable to such Credit Party than arm’s length basis for such sale or other dispositionfair market value (as reasonably determined by Borrower);
(q) during dispositions to consummate the term of this AgreementTransactions;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiaryunwinding of a Hedge Agreement; and
(s) the Borrower and its or any Restricted Subsidiaries Subsidiary may terminate leases(i) convert any intercompany Indebtedness to Capital Stock, subleases(ii) transfer any intercompany Indebtedness to Holdings, licenses and sublicenses Borrower or any Restricted Subsidiary, (iii) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by Holdings, Borrower or any Subsidiary, (iv) settle, discount, write off, forgive or cancel any Indebtedness, in the ordinary course of business. To the extent the Required Lenders business and consistent with past practice, owing by any present or former consultants, directors, officers or employees of any Holdings (or all Lendersany direct or indirect parent company), if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, Borrower or any Collateral is sold as permitted by this Section 7.6 Subsidiary or any of their successors or assigns and (other than to a Loan Party (other than Parent))v) surrender or waive contractual rights and settle or waive contractual or litigation claims, such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, ordinary course of business and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)consistent with past practice.
Appears in 1 contract
Samples: Credit Agreement (Clearwater Analytics Holdings, Inc.)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted Subsidiaries Material Subsidiary to, convey, sell, lease, assign, transfer or otherwise dispose of any its assets (whether in one transaction or in a series of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, transactions) to any other Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) dispositions of property no longer used or useful in the business of the Borrower or any Subsidiary, (iii) dispositions of assets the net proceeds of which are invested or re-invested, or held in cash or cash-equivalents for reinvestment, in the Borrower's or its Material Subsidiaries' existing businesses, (iv) the sale of the Water Assets or issuance by the assets of any Restricted other Subsidiary of the Borrower as to which the Borrower has announced on or prior to June 30, 2003, that it will discontinue the operations of its own Qualified Capital Stock to any Loan Party such Subsidiary, (other than Parentv) assets sold under the AFC Program, (so long as, except to vi) the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement offering of Law in the jurisdiction of incorporation shares of any Restricted Subsidiary Subsidiary, (vii) the disposition of all or part of the Borrower's Taconite Harbor Energy Center, any sale or issuance by such Person (viii) the disposition of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets unimproved real property not necessary for other tangible assets of comparable or greater value useful to the business operation of the Loan Parties orBorrower's or its Subsidiaries' business, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested determined by the Borrower in order its reasonable discretion; provided, however, that a wholly-owned Subsidiary of the Borrower may sell, lease, or transfer all or a substantial part of its assets to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided another wholly-owned Subsidiary of the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan DocumentsBorrower, and the Borrower will notor such other wholly-owned Subsidiary, as the case may be, may acquire all or substantially all of the assets of the Subsidiary so to be sold, leased or transferred to it, and will any such sale, lease or transfer shall not permit any Subsidiary to, permit any transfer be included in determining if the Borrower and/or its Subsidiaries disposed of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)its Assets.
Appears in 1 contract
Samples: Credit Agreement (Allete Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Parent shall not, and will shall not permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of any of its assetstheir respective assets or any interest therein (including the sale or factoring of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital StockStock or Stock Equivalent (any such disposition in excess of $1,000,000.00 per transaction or series of related transactions, in each case whether now owned or hereafter acquired, to any Person other than being an “Asset Sale”) except for the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) following: the sale or other disposition of immaterialinventory (including fabricated projects for customers, surplus, obsolete or worn out property or other property not necessary for operations;
(bsuch as offshore production platforms and related components) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) ; transfers resulting from any sale taking or condemnation of any property of the Parent or any of its Subsidiaries (other than their own stock or, as long as no Default or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to Event of Default has occurred and is continuing or would result therefrom, deed in lieu thereof); as long as no Default or Event of Default is continuing or would result therefrom, the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementssale or disposition of equipment that the Parent reasonably determines is no longer useful in its or its Subsidiaries’ business, write-offshas become obsolete, discount, sales damaged or other dispositions surplus or is replaced in the ordinary course of business business; as long as no Default or Event of extension Default is continuing or would result therefrom, the lease or sublease or chartering of trade creditproperty not constituting a sale and leaseback, including defaulted to the extent not otherwise prohibited by this Agreement or past due receivables;
(h) disposition the Mortgages; as long as no Default or Event of assets Default is continuing or would result therefrom, non-exclusive assignments and licenses of intellectual property of the Parent and its Subsidiaries in the ordinary course of business; as a long as no Default or Event of Default is continuing or would result therefrom, discounts, adjustments, settlements and compromises of a casualty loss or condemnation proceeding;
Accounts and contract claims in the ordinary course of business; any Asset Sale (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by to the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) Parent or 8.1(i) shall exist any Wholly-Owned Loan Party or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan PartyParty to the Parent or another Restricted Subsidiary of the Parent; as long as (x) no Default or Event of Default is continuing or would result therefrom and (y) immediately before and after giving effect to the Asset Sale, useful the Parent and the Term Borrower shall be in pro forma compliance with Sections 5.3 and 5.4 as of the most recent date of determination, and subject to Section 2.9(a), (i) any other Asset Sale (other than an Asset Sale in respect of a Mortgaged Vessel or Stock in a Mortgaged Vessel Owning Subsidiary) for Fair Market Value, at least 75% of which is payable in cash or Cash Equivalents upon such sale and (ii) any other Asset Sale for Fair Market Value so long as the Non-cash Consideration from such Asset Sale and all other Asset Sales made in reliance upon this clause (h)(ii) after the Effective Date does not exceed $30,000,000.00; any Asset Sale of one or more Mortgaged Properties or Mortgaged Vessels or Stock in a Mortgaged Vessel Owning Subsidiary or a Subsidiary which directly or indirectly owns a Mortgaged Vessel Owning Subsidiary, subject to Section 2.9(a), and so long as (i) no Default or Event of Default is continuing or would result therefrom, (ii) the Asset Sale is for Fair Market Value, (iii) except to the extent that a Loan Party receives one or more marine vessels from another Person in trade or exchange for such assets so disposed of, at least 75% of the consideration for such Asset Sale consists of cash or Cash Equivalents received at closing of such Asset Sale; provided that this clause (iii) shall not apply to any Asset Sale of the Mortgaged Vessel named XxXxxxxxx Xxxxxxx Barge No. 16 if the Parent has provided the Administrative Agent with a summary of the terms of such Asset Sale at least 10 Business Days (or such shorter period of time permitted by the Administrative Agent in its sole discretion) before the date of such Asset Sale, (iv) any marine vessel received from another Person in trade or exchange for such assets so disposed of shall concurrently with its acquisition be added to the Collateral pursuant to arrangements substantially similar to those made with respect to the Mortgaged Vessels on the Effective Date, and (v) immediately before and after giving effect to the Asset Sale, the Parent and the Term Borrower shall be in pro forma compliance with Sections 5.3 and 5.4 as of the most recent date of determination; as long as no Default or Event of Default is continuing or would result therefrom, any Asset Sale of the Stock of any Captive Insurance Subsidiary for Fair Market Value, at least 75% of which is payable in cash or Cash Equivalents upon such sale; and Asset Sales permitted by Section 8.13. Notwithstanding the foregoing, no Asset Sale shall be permitted hereunder if the assets being disposed of in such transaction or any series of related transactions would, in the aggregate, constitute a material portion of the business of such Restricted Subsidiary;
(p) the Borrower Parent and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to taken as a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)whole.
Appears in 1 contract
Sale of Assets. The No Loan Parties (other thanParty shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, (except in the case of any Restricted Subsidiary, the Borrower) issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplusin each case in the ordinary course of business, obsolete and the sale or worn out property disposition of private or other property not necessary for operationsself-pay Accounts that are more than 270 days past the Discharge Date;
(b) the sale or other disposition of (i) inventory Equipment that has become obsolete, worn-out surplus or is no longer used or useful in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the such Loan Parties;
(d) the sale, assignment, transfer Party or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into is replaced in the ordinary course of business;
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction;
(d) assignments and licenses of intellectual property of the Loan Parties in the ordinary course of business; AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(e) any Asset Sale to the Borrower or any Guarantor;
(f) any sale Group Member can issue or sell any shares of its Stock or any property (other than their own stock or stock equivalents) by Stock Equivalents thereof in connection with any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentbona fide joint venture arrangement;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditany Asset Sale, including defaulted the sale or past due receivablesdisposition of hospital facilities owned by any Loan Party, disclosed on Schedule 8.4 (Asset Sales);
(h) disposition as long as no Default or Event of assets as a Default is continuing or would result of a casualty loss or condemnation proceeding;
therefrom, any other Asset Sale not otherwise permitted under clauses (a) through (g) above; provided, however, that with respect to any such Asset Sale pursuant to this clause (h), (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are such Asset Sale is made for fair market Fair Market Value, as determined at the earlier of (x) at the time the legally binding commitment for such Asset Sale was entered into and (y) if no legally binding commitment was entered into, the date of such Asset Sale, in each case without giving effect to subsequent change in value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) a Group Member shall either (x) receive not less than 75% of the aggregate sales price for such sale or other disposition shall be paid consideration in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower excess of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law $37,500,000 in the jurisdiction form of incorporation of any Restricted Subsidiary cash or the Borrower, any sale Cash Equivalents or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(py) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) aggregate non-cash consideration received for all other Asset Sales consummated after the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount Amendment No. 4 Effective Date does not exceed the greater of (x) $20,000,000 500,000,000 and (y) 282.16% of Consolidated EBITDA (for Total Assets as of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredFinancial Statements were delivered pursuant to Section 6.1(a) or (b) (Financial Statements at any time (provided, calculated on that for purposes of this clause (ii), (A) secured notes issued by the buyer of such assets that are secured by the assets being sold and evidencing obligations to pay up to 20% of the cash consideration for any such Asset Sale, (B) any securities received by any Group Member from such Asset Sale that are converted by such Group Member into cash or Cash Equivalents within 180 days following the closing of the applicable Asset Sale and (C) any liability assumed by the buyer of such assets in connection with any such Asset Sale, in each case shall be considered cash and Cash Equivalents); provided, further, that if Collateral with a value in excess of $30,000,000 is the subject of any one or more Asset Sales pursuant to this clause (h) in any given calendar year, the Borrower shall deliver an updated Borrowing Base Certificate giving pro forma basis for effect thereto on or prior to the date of consummation of such sale or other disposition) during the term of this AgreementAsset Sale;
(ri) the Borrower sale or disposition of Stock or Stock Equivalents of any Unrestricted Subsidiary or Immaterial Subsidiary;
(j) any Investment permitted by Section 8.3 (Investments) and its (ii) any Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryPayment permitted by Section 8.5 (Restricted Payments); and
(sk) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (sale or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or assets not constituting Collateral if prior to and after giving effect to any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral sale of assets the Excess Availability Condition shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)satisfied.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) transfers resulting from any sale taking or condemnation of any property of the Borrower or any of its Subsidiaries (other than their own stock or, as long as no Default or stock equivalentsEvent of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) by as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of equipment that the Borrower reasonably determines is no longer useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of the Specified Property;
(e) as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of assets of any Restricted Subsidiary to any Loan Party Permitted Joint Venture that, both at the time of such sale and as of the Effective Date, do not constitute, in the aggregate, all or a material part of the assets of such Permitted Joint Venture;
(other than Parentf) as long as no Default or Event of Default is continuing or would result therefrom, the lease or sublease of Real Property not constituting a sale and leaseback, to the extent any resulting Investment constitutes a Permitted Investmentnot otherwise prohibited by this Agreement or the Mortgages;
(g) settlementsas long as no Default or Event of Default is continuing or would result therefrom, write-offsassignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(h) as long as no Default or Event of Default is continuing or would result therefrom, discountdiscounts, sales or other dispositions adjustments, settlements and compromises of Accounts and contract claims in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceedingand in accordance with generally accepted practices in the industry;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long any Asset Sale (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) to the Borrower or 8.1(i) shall exist any Subsidiary Guarantor or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock that is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by not a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(pj) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, at least 75% of which is payable in cash or Cash Equivalents upon such sale; provided, however, that with respect to any such sale pursuant to this clause (j), the Borrower and its Restricted Subsidiaries may terminate or unwind aggregate consideration received for the sale of all assets sold during any Hedging Transaction in accordance with its termsFiscal Year shall not exceed $15,000,000;
(qk) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of Asset Sales permitted by Section 8.13 (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiarySale/Leasebacks); and
(sl) any issuance of Voting Stock of the Borrower pursuant to the Warrants or the Stock Options, and its Restricted Subsidiaries may terminate leases, subleases, licenses subject to the terms and sublicenses conditions set forth therein and in the ordinary course of business. To the extent the Required Lenders (or all LendersWarrant Agreements or, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentscase may be, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)applicable Stock Option Plan.
Appears in 1 contract
Samples: Amendment Agreement (Washington Group International Inc)
Sale of Assets. The Loan Parties (other thanNeither the Parent nor the Borrower shall, subject to Section 7.14, Parent) will not, and will not nor shall they permit any of their Restricted respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Parent, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the liquidation, sale or other disposition of immaterialcash, surplusCash Equivalents or inventory, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementsEquipment that has become surplus, writeworn-offsout, discountobsolete, sales or other dispositions is replaced in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesis no longer used or useful in the business;
(hc) disposition the discount or write-off of assets as a result accounts receivable overdue by more than 90 days or the sale of a casualty loss or condemnation proceedingany such account receivables for the purpose of collection to any collection agency, in each case in the ordinary course of business;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(md) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To business of Intellectual Property (A) registered outside of the extent United States or (B) having an aggregate Fair Market Value whose Dollar Equivalent does not exceed $20,000,000 during the Required Lenders term of this Agreement or (or all Lenders, if required ii) any Foreign IP Transfer;
(e) the cancellation of any Indebtedness permitted to be cancelled under Section 10.28.6(a) waive (Prepayment and Cancellation of Indebtedness);
(f) the provisions issuance of this Nominal Shares;
(g) (i) a true lease or sublease of any property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction, in each case as permitted under Section 7.6 with respect 8.16 (Sale and Leaseback Transactions);
(i) any Asset Sale to the conveyance, sale, lease, assignment or other disposition of any Collateral, Borrower or any Collateral is sold Guarantor as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable consideration given by the Loan Party shall have provided Parties to any Non-Guarantor does not exceed the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding Fair Market Value of the foregoing or anything else assets transferred to any Loan Parties, (ii) any Asset Sale to any Non-Guarantor to the contrary extent, after giving effect to such Asset Sale (and any other Asset Sale or Investment in Non-Guarantors to be made on or prior to the Loan Documentsdate of such Asset Sale), the Borrower will not, Dollar Equivalent of the Non-Guarantor Investment Amount does not exceed $20,000,000 and will not permit (iii) any Asset Sale by any Non-Guarantor to any Non-Guarantor;
(i) (A) the liquidation or merger of any Subsidiary toof the Parent, permit any transfer to the extent such liquidation or merger is permitted pursuant to clause (x) of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).Section 8.7
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) transfers resulting from any sale taking or condemnation of any property of the Borrower or any of its Subsidiaries (other than their own stock or, as long as no Default or stock equivalentsEvent of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) by as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of equipment that the Borrower reasonably determines is no longer useful in its business, has become obsolete or damaged or is replaced in the ordinary course of business;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of the Specified Property;
(e) as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of assets of any Restricted Subsidiary to any Loan Party Permitted Joint Venture that, both at the time of such sale and as of the Effective Date, do not constitute, in the aggregate, all or a material part of the assets of such Permitted Joint Venture;
(other than Parentf) as long as no Default or Event of Default is continuing or would result therefrom, the lease or sublease of Real Property not constituting a sale and leaseback, to the extent any resulting Investment constitutes a Permitted Investmentnot otherwise prohibited by this Agreement or the Mortgages;
(g) settlementsas long as no Default or Event of Default is continuing or would result therefrom, write-offsassignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(h) as long as no Default or Event of Default is continuing or would result therefrom, discountdiscounts, sales or other dispositions adjustments, settlements and compromises of Accounts and contract claims in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceedingand in accordance with generally accepted practices in the industry;
(i) Investments made in accordance with Section 7.4any Asset Sale to the Borrower or any Subsidiary Guarantor;
(j) Restricted Payments permitted under Section 7.5;as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such sale pursuant to this clause (j), the aggregate consideration received for the sale of all assets sold during any Fiscal Year shall not exceed $7,500,000; and
(k) sales and other dispositions any issuance of assets by Voting Stock of the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty Warrants or the Stock Options, and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except subject to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty terms and Security Agreement) conditions set forth therein and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties Warrant Agreements or, in as the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentsbe, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Stock Option Agreement.
Appears in 1 contract
Samples: Credit Agreement (Washington Group International Inc)
Sale of Assets. The Loan Parties (other thanNo Credit Party shall, subject to Section 7.14, Parent) will not, and will not nor shall it permit any of their Restricted its Subsidiaries to, sell, convey, sell, lease, assign, transfer or otherwise dispose of transfer any of its assets, business assets except that (a) any Credit Party may sell inventory and convey or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stockotherwise transfer cash, in each case whether now owned in the ordinary course of business; (b) any Credit Party may sell, convey, dispose or hereafter acquired, otherwise transfer any of its assets to any Person other than the Borrower or a Guarantor Credit Party; (other than Parentc) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition dispositions of immaterial, surplus, obsolete or worn out property Property in the ordinary course of business, and dispositions of Property no longer useful or other property not necessary used by the Borrower and its Subsidiaries in the conduct of its business; (d) dispositions of equipment to the extent that such Property is exchanged for operations;
credit against the purchase price of similar replacement Property or the proceeds of which are reasonably promptly applied to the purchase price of such replacement Property; (be) dispositions of Liquid Investments; (f) dispositions of accounts receivable in connection with the sale collection or other disposition compromise thereof in the ordinary course of business; (ig) inventory leases, subleases, licenses or sublicenses or Property in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary which do not interfering in any material respect materially interfere with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
Subsidiaries; (h) disposition transfers of assets as a result of a casualty loss or condemnation proceeding;
property subject to Casualty Events, subject to the Borrower’s compliance with Section 2.3(c)(ii); (i) Investments made in accordance with Section 7.4;
dispositions permitted by Sections 6.3, 6.7 and 6.9; (j) Restricted Payments permitted under Section 7.5;
the Borrower may consummate any Equity Issuance of its equity securities or Equity Interests (including any preferred equity securities); and (k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate sell, convey, dispose or unwind otherwise transfer any Hedging Transaction in accordance with its terms;
Properties not otherwise permitted under the preceding clauses (qa) through (j); provided that (i) no Default has occurred and is continuing or would be caused thereby, (ii) at least 80% of the proceeds of all such sales, conveyance, dispositions and transfers shall consist of cash or Liquid Investments, (iii) the sale aggregate consideration received in respect of such sale, conveyance, disposition or other disposition for transfer, as applicable, shall be in an amount no less than the fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 such Properties, and (yiv) 28% of Consolidated EBITDA either (for A) the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredSenior Secured Leverage Ratio, calculated on a pro forma basis for after giving effect to such sale sale, conveyance, disposition or other disposition) during transfer as of the term beginning of this Agreement;
the period of four fiscal quarters most recently ended, is less than 3.50 to 1.00 or (rB) the Borrower aggregate amount of all such sales, conveyance, dispositions and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of transfers made pursuant to this Section 7.6 with respect 6.8(k) in periods when the pro forma Senior Secured Leverage Ratio is equal to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other greater than 3.50 to a Loan Party (other than Parent)), such Collateral 1.00 shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized not exceed an aggregate amount equal to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)$30,000,000.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Hi-Crush Partners LP)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will notNeither Holdings nor the Borrower shall, and will not neither shall permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $1,000,000;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Required Lenders Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to the Borrower or all Lendersany Subsidiary Guarantor (other than Aviall Japan); and SECOND AMENDED AND RESTATED CREDIT AGREEMENT AVIALL SERVICES, if required under Section 10.2INC.
(f) waive the provisions as long as no Default or Event of this Section 7.6 Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such sale pursuant to this clause(f) (i) the conveyance, sale, lease, assignment or other disposition aggregate consideration received for the sale of all assets sold during any Collateral, or any Collateral is sold Fiscal Year shall not exceed $10,000,000 and (ii) all Net Cash Proceeds of such Asset Sale are applied as permitted by this set forth in Section 7.6 2.9 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted SubsidiaryMandatory Prepayments).
Appears in 1 contract
Samples: Credit Agreement (Aviall Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will not nor shall it permit any Subsidiary of the Borrower to, sell, convey, transfer, lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person or permit or suffer any other Person to acquire any interest in any of their respective assets, nor shall the Borrower permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer to issue or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents, surplusInventory, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory customer premise equipment and fiber optic cable, in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patentseach case, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock Equipment that has become obsolete or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions is replaced in the ordinary course of business business; provided, however, that the aggregate Fair Market Value of extension all such equipment disposed of trade credit, including defaulted or past due receivablesin any Fiscal Year shall not exceed $1,000,000;
(hc) disposition a true lease or sublease of assets as Real Property not constituting Indebtedness and not constituting a result of a casualty loss or condemnation proceedingsale and leaseback transaction;
(id) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales assignments and other dispositions licenses of assets by intellectual property of the Borrower and its Restricted Subsidiaries which are made in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor; 2ND LIEN CREDIT AGREEMENT KNOLOGY, INC.
(f) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale(including in the form of a sale and leaseback transaction) for fair market value Fair Market Value, payable at least 75% in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (as reasonably determined by the Borrowerf), so long (i) no Event the aggregate consideration received (together with the Fair Market Value of Default under Section 8.1(a), 8.1(b), 8.1(hany Asset Sales permitted by clause (h) or 8.1(ibelow) (x) during any Fiscal Year for all such Asset Sales shall exist or result therefrom, and not exceed $15,000,000 (ii) not less than 75provided that up to 100% of the aggregate sales price amount in this clause (x), if not received in the Fiscal Year for which it is permitted, may be carried over for receipt in the next succeeding Fiscal Year; provided, further, that consideration received in any Fiscal Year shall be deemed received, first, in respect of the amounts permitted for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)Fiscal Year and, (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties orsecond, in respect of amounts carried over from the case of any such trade-ins prior Fiscal Year) or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this AgreementAgreement shall not exceed $30,000,000 for such Asset Sales and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, Section 2.6 (Mandatory Prepayments);
(rg) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryCerritos Sale; and
(sh) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses any Asset Sale in the ordinary course form of business. To a divestiture of assets acquired after the Closing Date either in connection with a Permitted Acquisition or an Investment permitted by clauses (f) or (i) of Section 8.3 (Investments); provided, however, an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent the Required Lenders required by, Section 2.6 (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanSubject to the terms and conditions set forth herein and in the Bid Procedures Order and the Sale Order, subject to Section 7.14at the Closing, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, each Seller shall sell, lease, assign, transfer or otherwise dispose assume and assign, transfer, convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from each Seller, free and clear of any Liens other than Permitted Liens, all of such Seller’s right, title and interest in, to and under all of its assets, business properties and rights of every kind and nature, whether real or property orpersonal, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stocktangible or intangible, in each case whether now owned or hereafter acquiredcase, to any Person other than the Borrower or a Guarantor Excluded Assets (other than Parent) (or to qualify directors if required by applicable lawcollectively, the “Assets”), except:
(a) including the sale following: NTD: If Buyer is not sufficiently capitalized and creditworthy, a parent entity or other disposition of immaterial, surplus, obsolete adequate financial assurances will be required to join this Agreement or worn out property or other property not necessary for operations;otherwise support Buyer’s obligations.
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;01: 21854614.2 {37165496;1}
(i) Investments made in accordance the Store Leases, together with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except only to the extent constituting Excluded Property, of such Capital Stock is pledged as Collateral pursuant Seller’s interest therein) the Improvements located on or attached to the Guaranty underlying real property, and Security Agreement) all rights arising out of the ownership thereof including: all options and (iii) rights of first refusal, all Real Property Documents creating or modifying any such interest, and all of such Seller’s rights, title and interest in and under such Real Property Documents related to such Store Property; all easements and rights-of-way; water rights; rights, title and interest in all strips and gores; all reciprocal easements; all alleys and the extent necessary to satisfy any Requirement of Law land laying in the jurisdiction of incorporation bed of any Restricted Subsidiary street, road or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) traderight-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such tradeof-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business way; all of such Restricted Subsidiary;
(p) the Borrower Seller’s right, title and its Restricted Subsidiaries may terminate interest in and to any award made or unwind to be made in lieu thereof, and in and to any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition unpaid award, for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities taking by condemnation of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted damages to, any Store Property by this Section 7.6 (reason of a change of grade of any street, road or avenue; and all tenements, hereditaments, appurtenances and other than real property rights appertaining thereto, subject to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear the rights of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party landlord (including rights to ownership or use of such property) under such Store Leases; provided, however, Buyer agrees not to operate a pharmacy in any Unrestricted Subsidiary).of the Store Properties where Seller or its affiliates previously operated a pharmacy within the last six
Appears in 1 contract
Samples: Asset Purchase Agreement
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and nor will not it permit any of their Restricted Subsidiaries Subsidiary to, convey, sell, lease, assign, transfer sell or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, Property to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Person, except:
except for (a) sales of inventory in the sale or other disposition ordinary course of immaterialbusiness, surplus, (b) dispositions of obsolete or worn out property in the ordinary course of business, (c) dispositions of property no longer used or other useful in the conduct of the business of the Borrower and its Subsidiaries, (d) dispositions of property not necessary for operations;
(b) to the sale or other disposition of extent that (i) inventory such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property, (e) transfers or the liquidation of Cash Equivalent Investments, (f) leases, subleases, non-exclusive licenses or sublicenses (excluding, in each case, Capitalized Leases) of any property (including Intellectual Property) in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary which do not interfering in any material respect materially interfere with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a leaseSubsidiaries, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business consisting of extension the abandonment or cancellation of trade creditany Intellectual Property which, including defaulted or past due receivables;
in the reasonable good faith determination of the Borrower is not material to the conduct of the business of Borrower and its Subsidiaries, taken as a whole, (h) disposition transfers of property or assets as a result subject to casualty, condemnation or similar event upon receipt of a the condemnation or casualty loss or condemnation proceeding;
proceeds thereof, (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by a Subsidiary to the Borrower or a Subsidiary, including in connection with the liquidation or dissolution of its own Qualified Capital Stock to Parent such Subsidiary; provided that (so long as x) if such Capital Stock disposition is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions made by a Loan Party to another Loan Party (other than Parent);
(o) tradea non-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful such disposition shall be considered an Investment under Section 6.14 and (y) if such disposition is made by a Loan Party to a non-Loan Party in connection with the Foreign Restructuring, such disposition shall not count against the investment basket under Section 6.14(e) but shall rather be considered an Investment permitted under Section 6.14(q), (j) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the business terms of any lease and Liens or rights reserved in any lease for rent or for compliance with the terms of such Restricted Subsidiary;
lease, (pk) leases, sales or other dispositions of its Property that, together with all other Property of the Borrower and its Restricted Subsidiaries may terminate previously leased, sold or unwind disposed of pursuant to this Section 6.13(k) during the twelve (12) month period ending with the month in which any Hedging Transaction such lease, sale or other disposition is scheduled to occur would reduce Consolidated EBITDA for the trailing twelve (12) month period by more than ten percent (10%) on a pro forma basis, (l) sales, transfers or other dispositions set forth on Schedule 6, (m) termination of a lease of real or personal property that is not necessary for the ordinary course of business, could not reasonably be expected to have a Material Adverse Effect and does not result from an obligor’s default, (n) voluntary termination of any Swap Agreement, (o) the expiration of any contract, contract right or other agreement in accordance with its terms;
, (p) the sale or issuance of any Equity Interests by the Borrower not constituting a Change in Control, (q) the sale or other disposition for fair market value issuance of Real Estate pursuant any Equity Interests of a Subsidiary of the Borrower to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredBorrower or another Subsidiary, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) dispositions of accounts receivable in connection with the Borrower collection or compromise thereof, and its Restricted Subsidiaries may issue or sell any Capital Stock in(s)(i) sales, transfers and other dispositions of Investments in joint ventures permitted under Section 6.14 to the extent required by, or Indebtedness made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements or other securities of, an Unrestricted Subsidiary; and
(sii) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course winding down or dissolution of business. To the extent the Required Lenders (or all Lenders, if required joint ventures permitted under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)6.14.
Appears in 1 contract
Samples: Credit Agreement (First Cash Financial Services Inc)
Sale of Assets. The Loan Parties Itself, or allow any of its Subsidiaries to sell, lease, assign, transfer or otherwise dispose of any assets of the Company and its Subsidiaries (other thanthan obsolete or worn out property), subject to Section 7.14whether now owned or hereafter acquired, Parent) will notother than in the ordinary course of business as presently conducted and at fair market value (it being expressly agreed and understood that the sale or other disposition of Mortgage Loans with or without servicing released and the sale or other disposition of servicing rights are in the ordinary course of business); provided, and will not permit however, that in no event shall the Company or any of their Restricted its Subsidiaries toenter into any sale and leaseback transaction involving any of its assets without the prior written consent of the Majority Lenders; provided further, convey, that the Company may sell, lease, assign, transfer or otherwise dispose of any of its assetsassets to a Subsidiary of the Company (which, business for the purpose of this proviso shall include any limited partnership the general and limited partners of which are Subsidiaries of the Company) so long as: (1) all classes of stock of, or property orpartnership interests in, in such Subsidiary are owned, directly or indirectly, by the case of any Restricted SubsidiaryCompany, any shares of and such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor Subsidiary incurs no obligations for third party indebtedness (other than ParentIndebtedness secured by Liens permitted by Paragraph 10(a) (above and obligations to employees and vendors as are necessary or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory desirable in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary normal conduct of the business of the Loan Parties;
servicing 1-4 unit single family mortgage loans and in managing an office building owned by such Subsidiary), (d2) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of such unpaid obligations as are described in subparagraph (1) above (excluding Indebtedness secured by Liens permitted by Paragraph 10(a) above and payroll and benefits obligations to employees) shall not exceed at any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into time $50,000,000.00 in the ordinary course of business;
aggregate, and (f3) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets if as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions such transfer of assets such Subsidiary becomes a Subsidiary Guarantor, such Subsidiary executes the documents, instruments and agreements required pursuant to Paragraph 6(a)(2) above; and, provided further, that the Company and its Subsidiaries may sell, lease, assign, transfer or otherwise dispose of any Mortgage Loans and Mortgage-Backed Securities to Affiliates provided that the net cash proceeds of such transactions actually received by the Borrower Company immediately upon the consummation thereof (and its Restricted Subsidiaries which are made for fair market value (after giving effect to any requirement that the Company deposit funds as reasonably determined by the Borrower)collateral security or other form of credit support with respect to such transaction, so long (iwhether from such net cash proceeds or out of other funds) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) is not less than 75% one hundred percent (100%) of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for subject assets or, if less, that the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses Parent Y concurrently contributes equity in the ordinary course form of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect cash to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary Company in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer full amount of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)such deficiency.”
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) It will not, and will not permit any of their its Restricted Subsidiaries to, conveyenter into any Divestiture or any other conveyance, sellsale, lease, assignsublease, transfer assignment, transfer, or otherwise other disposition of any Property, or issue or dispose of any of its assets, business or property or, in the case Equity Interests of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, Subsidiary to any Person other than the a Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Party, except:
(a) the sale sales of inventory and cash or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Investments in the ordinary course of business;
(fb) disposition of used, worn out, obsolete or surplus Property in the ordinary course of business;
(c) leases of Real Property or personal Property to third parties in the ordinary course of business;
(d) any sale disposition of assets, or issuance or disposition of Equity Interests, by the Borrower to any property Restricted Subsidiary (other than their own stock or stock equivalentsexcept that the Borrower shall not issue Equity Interests to a Restricted Subsidiary) and by any Restricted Subsidiary to the Borrower or to any Loan Party other Restricted Subsidiary;
(e) transfers of assets into a Joint Venture or Unrestricted Subsidiary so long as such Investment in such Joint Venture or Unrestricted Subsidiary is permitted pursuant to Section 6.04;
(f) the issuance, sale or other than Parent) to the extent disposition of Equity Interests in or of any resulting Investment constitutes a Permitted InvestmentUnrestricted Subsidiary or any Joint Venture;
(g) settlements, write-offs, discount, sales or other dispositions of overdue accounts receivable in the ordinary course of business of extension of trade credit, including defaulted in connection with the compromise or past due receivablescollection thereof;
(h) issuance or disposition of assets membership interests in ANSAC in connection with the addition of any member to ANSAC in accordance with its organizational documents (as in effect on the Effective Date or otherwise amended in a result of a casualty loss manner not materially adverse to the Administrative Agent or condemnation proceedingthe Lenders);
(i) Investments made as long as no Default or Event of Default has occurred and is continuing or would result therefrom, other sales or dispositions of Property (other than any sale or disposition to any member of the ORRI SPV Group); provided, that the aggregate cash proceeds and other consideration therefor (excluding customary fees, expenses, costs and Taxes paid in accordance connection with the consummation of such sale or disposition) received by the Borrower Parties in any twelve-month period resulting from all such sales or dispositions, shall not exceed an amount equal to 7.5% of Consolidated Net Tangible Assets as of the most recent delivery of financial statements pursuant to Section 7.45.01(a) or Section 5.01(b);
(j) Restricted Payments dispositions of cash or other Property solely to effect any Investments permitted under Section 7.5;6.04(A)(f) or (n) (or, on or after the Investment Grade Date, Section 6.04(B)); and
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower)Securitization Assets in connection with any Securitization Facility permitted hereunder; provided, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To to the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 6.06 with respect to the conveyance, sale, lease, assignment or other disposition of any CollateralCollateral (including the Divestiture of any Guarantor), or any Collateral is sold disposed as permitted by this Section 7.6 6.06 (other than including the Divestiture of any Guarantor), (i) such Collateral (unless disposed of to a Loan Party (other than Parent)), such Collateral Borrower Party) shall automatically be deemed sold free and clear of the Liens created by the Collateral DocumentsSecurity Documents and (ii) the Guarantee of any divested Guarantor that ceases to be a Restricted Subsidiary shall be released, and (y) in the case of any issuance or disposition permitted by clause (h) of this Section 6.06, the Guarantee of, and all Liens granted by, ANSAC shall be released, and (z) in the case of (x) or (y), the Administrative Agent is authorized to take and shall take any all actions it deems appropriate or as reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Genesis Energy Lp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets (including FCC Licenses) or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to any Person other than the Borrower or a Guarantor Stock Equivalent (other than Parent) (or to qualify directors directors' qualifying shares, if required by applicable law) (any such disposition being an "ASSET SALE"), except:
(a) the sale or other disposition of immaterialadvertising time, surplus, obsolete programs or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into movies in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction equipment which have become obsolete, are no longer used or are useful in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale Borrower's or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue Subsidiary's business or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses are replaced in the ordinary course of business. To ; PROVIDED, HOWEVER, that the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $1,000,000;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement, PROVIDED that the Required Lenders (relevant Loan Party's interest in any such lease or all Lenders, if sublease is pledged to the Collateral Agent to the extent required under Section 10.2SECTION 7.14;
(d) waive assignments and licenses of intellectual property of the provisions Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale not otherwise permitted hereunder if consented to in writing by, in the case of Tranche A Collateral, the Requisite Tranche A Lenders and, in the case of Tranche B Collateral, the Requisite Tranche B Lenders;
(f) Cash and Cash Equivalents if otherwise permitted elsewhere in this Section 7.6 with respect to the Agreement; and
(g) any sale, conveyance, saletransfer, lease, assignment lease or other disposition of equipment from any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Tranche A Loan Party to Parent or a Subsidiary that is not a another Tranche A Loan Party (including and any Unrestricted Subsidiary)sale of equipment from any Tranche B Loan Party to another Tranche B Loan Party.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanSell, subject to Section 7.14issue, Parent) will notassign, and will not permit any of their Restricted Subsidiaries totransfer, convey, lease or sublease, license or otherwise dispose of, or permit any Subsidiary to sell, leaseissue, assign, transfer transfer, convey, lease or sublease, license or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stockof, in each case whether in one transaction or a series of related transactions, all or any part of its business, property or assets, or any interest therein, whether now owned or hereafter acquired (or agree to do any of the foregoing), or permit or suffer any other Person to acquire any interest in its business, assets or property (or agree to do any of the foregoing); except:
(i) the sale by any Borrower or Guarantor or any of their respective Subsidiaries of any inventory in the ordinary course of business; 102
(ii) the sale or other disposition by any Borrower or Guarantor or any of their respective Subsidiaries of obsolete or discontinued inventory, and the sale or other disposition by any Borrower or Guarantor or any of their respective Subsidiaries of obsolete or worn-out Equipment, in each case, in the ordinary course of business, whether now owned or hereafter acquired, to PROVIDED, THAT, the aggregate amount of any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:such assets sold in any Fiscal Year shall not exceed $1,000,000;
(aiii) in addition to sales permitted under clause (ii) above, the sale or other disposition of immaterialEquipment or Real Property or of equipment or real property of a Subsidiary of Parent that is not a Borrower or Guarantor; PROVIDED, surplusTHAT, obsolete each of the following conditions is satisfied as to with respect thereto: (A) such proceeds as to any individual sale do not exceed $250,000; (B) as to an Asset Sale of Real Property or worn out property Equipment of any Borrower or other property not necessary for operations;
Guarantor, such proceeds from all such Asset Sales with respect to assets of Borrower and Guarantor during any year shall not, after giving effect to such Asset Sale, in the aggregate exceed $1,000,000; (bC) in the case of the sale or other disposition of Equipment or Real Property, the proceeds are used to purchase other Real Property or Equipment that will be free and clear of any Lien, except for Permitted Liens; (iD) inventory such new Real Property or Equipment is and continues to be subject to the first priority perfected Lien of Agent (subject to applicable Permitted Liens); (E) such new Real Property or Equipment is purchased within one hundred eighty (180) days after the sale or other disposition of the Equipment or Real Property that was subject to such Asset Sale; (F) if all or any portion of such proceeds are not so used within such one hundred eighty (180) day period, Agent shall apply such unused proceeds to the Obligations in accordance with Section 3.03(i) above or earlier upon an Event of Default; and (G) as to an Asset Sale of Real Property or Equipment of any Borrower or Guarantor, until such time as the proceeds are so used and so long as no Default or Event of Default exists or has occurred and is continuing (1) such proceeds will be held in a deposit account or investment account that is subject to a Control Agreement and only released from such account for the payment of the purchase price of such new Real Property or Equipment, or (2) a reserve against Availability shall be established under the Revolving Credit Facility and, in either case, released upon receipt of written request of Administrative Borrower certifying that such proceeds are to be so reinvested;
(iv) the sale, assignment, lease or sublease, license or other disposition of property by any Borrower, Guarantor or any other Subsidiary of Parent to any Borrower; PROVIDED, THAT, (A) such sale or other disposition is permitted under Section 6.02(k) hereof, and (B) such property is subject to a perfected, first priority Lien in favor of Agent (subject to Permitted Liens);
(v) any disposition permitted under Section 6.02(d) hereof;
(vi) the non-exclusive License of Intellectual Property rights (including, without limitation, Licenses) granted to a customer of any Borrower or Guarantor in the ordinary course of business business, substantially consistent with past practice and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Partiesany Borrower or Guarantor;
(dvii) any lease or sub-lease of Real Property to any Person other than a Borrower on terms and subject to conditions consistent with the sale, assignment, transfer market with respect to such lease or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintainsub-lease at such time;
(eviii) a lease, sublease, license an Asset Sale of Equipment or other similar use or occupancy agreement Real Property that is part of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes consideration for a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales Acquisition and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% each of the conditions to such Permitted Acquisition are satisfied, PROVIDED, THAT, the aggregate sales price for value of all such sale Equipment or other disposition Real Property subject to all of such Asset Sales, shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long not exceed $1,000,000 and as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty date thereof and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated after giving effect thereto on a pro forma basis for such sale basis, no Default or other disposition) during the term Event of this AgreementDefault shall exist or have occurred and be continuing;
(rix) issuances and sales of Capital Stock to the extent permitted under Section 6.02(l) below;
(x) any Permitted Lien;
(xi) an Asset Sale of Equipment or Real Property as a contribution to an Affiliate as an investment in such Affiliate to the extent permitted under Section 6.02(f)(vi) hereof;
(xii) the Borrower and its Restricted Subsidiaries may issue transfer of funds as a payment on Indebtedness owing by or sell to a Borrower, Guarantor or any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiarySubsidiary of Parent to the extent not otherwise prohibited hereunder; and
(sxiii) the Borrower investments and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To capital contributions to the extent the Required Lenders (or all Lenders, if required permitted under Section 10.26.02(f) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)hereof.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanNo Credit Party shall, subject to Section 7.14, Parent) will not, and will not nor shall it permit any of their Restricted its Subsidiaries to, sell, convey, sell, lease, assign, transfer or otherwise dispose of transfer any of its assets, business assets except that (a) any Credit Party may sell inventory and convey or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stockotherwise transfer cash, in each case whether now owned in the ordinary course of business; (b) any Credit Party may sell, convey, dispose or hereafter acquired, otherwise transfer any of its assets to any Person other than the Borrower or a Guarantor Credit Party; (other than Parentc) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition dispositions of immaterial, surplus, obsolete or worn out property Property in the ordinary course of business, and dispositions of Property no longer useful or other property not necessary used by the Borrower and its Subsidiaries in the conduct of its business; (d) dispositions of equipment to the extent that such Property is exchanged for operations;
credit against the purchase price of similar replacement Property or the proceeds of which are reasonably promptly applied to the purchase price of such replacement Property; (be) dispositions of Liquid Investments; (f) dispositions of accounts receivable in connection with the sale collection or other disposition compromise thereof in the ordinary course of business; (ig) inventory leases, subleases, licenses or sublicenses or Property in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary which do not interfering in any material respect materially interfere with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
Subsidiaries; (h) disposition transfers of assets as a result of a casualty loss or condemnation proceeding;
property subject to Casualty Events, subject to the Borrower’s compliance with Section 2.3(c)(ii); (i) Investments made in accordance with Section 7.4;
dispositions permitted by Sections 6.3, 6.7 and 6.9; (j) Restricted Payments permitted under Section 7.5;
the Borrower may consummate any Equity Issuance of its equity securities or Equity Interests (including any preferred equity securities); and (k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate sell, convey, dispose or unwind otherwise transfer any Hedging Transaction in accordance with its terms;
Properties not otherwise permitted under the preceding clauses (qa) through (j); provided -56- NY\6260051.12 that (i) no Default has occurred and is continuing or would be caused thereby, (ii) at least 80% of the proceeds of all such sales, conveyance, dispositions and transfers shall consist of cash or Liquid Investments, (iii) the sale aggregate consideration received in respect of such sale, conveyance, disposition or other disposition for transfer, as applicable, shall be in an amount no less than the fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 such Properties, and (yiv) 28% of Consolidated EBITDA either (for A) the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredSenior Secured Leverage Ratio, calculated on a pro forma basis for after giving effect to such sale sale, conveyance, disposition or other disposition) during transfer as of the term beginning of this Agreement;
the period of four fiscal quarters most recently ended, is less than 3.50 to 1.00 or (rB) the Borrower aggregate amount of all such sales, conveyance, dispositions and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of transfers made pursuant to this Section 7.6 with respect Section 6.8(k) in periods when the pro forma Senior Secured Leverage Ratio is equal to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other greater than 3.50 to a Loan Party (other than Parent)), such Collateral 1.00 shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized not exceed an aggregate amount equal to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)$30,000,000.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets (including FCC Licenses) or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to any Person other than the Borrower or a Guarantor Stock Equivalent (other than Parent) (or to qualify directors directors' qualifying shares, if required by applicable law) (any such disposition being an "ASSET SALE"), except:
(a) the sale or other disposition of immaterialadvertising time, surplus, obsolete programs or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into movies in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction equipment which have become obsolete, are no longer used or are useful in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale Borrower's or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue Subsidiary's business or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses are replaced in the ordinary course of business. To ; PROVIDED, HOWEVER, that the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $1,000,000;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement, PROVIDED that the Required Lenders (relevant Loan Party's interest in any such lease or all Lenders, if sublease is pledged to the relevant Collateral Agent to the extent required under Section 10.2SECTION 7.16;
(d) waive assignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale permitted pursuant to SECTION 7.13;
(f) the sale of KNTV to NBC pursuant to the KNTV Call Right; PROVIDED, that (i) the total consideration paid by NBC for the purchase of KNTV is an amount that is greater than or equal to the Fair Market Value (as defined in the NBC Affiliation Agreement) LESS reasonable costs and expenses of NBC consented to by the Tranche B Collateral Agent, (ii) 100% of the Net Cash Proceeds is paid in cash by NBC directly to the Administrative Agent, for the benefit of the Tranche B Lenders to be applied in accordance with the priority of payments set forth in SECTION 2.10(B), (iii) all of the provisions of this (x) Section 7.6 4(d) the NBC Network Affiliation and (y) the NBC Intercreditor Agreement are complied with respect and (iv) copies of each agreement to be entered into by and between NBC and the Borrower or any of its Subsidiaries in connection with the exercise of the KNTV Call Right by NBC, shall have been provided to the Tranche B Collateral Agent no less than 3 Business Days prior to execution and delivery thereof;
(g) any Asset Sale not otherwise permitted hereunder if consented to in writing by, in the case of Tranche A Collateral, the Requisite Tranche A Lenders and, in the case of Tranche B Collateral, the Requisite Tranche B Lenders;
(h) Cash and Cash Equivalents if otherwise permitted elsewhere in this Agreement; and
(i) any sale, conveyance, saletransfer, lease, assignment lease or other disposition of equipment from any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Tranche A Loan Party to Parent or a Subsidiary that is not a another Tranche A Loan Party (including and any Unrestricted Subsidiary)sale of equipment from any Tranche B Loan Party to another Tranche B Loan Party.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Restricted Subsidiary to, permit sell, assign, farm-out, convey or otherwise transfer any asset, including, without limitation, Property containing Proved Reserves constituting a portion of the Borrowing Base or to issue or sell any Equity Interests in the Borrower or any of its Restricted Subsidiaries except (i) an issuance or sale of Equity Interests in or Preferred Stock of Borrower, in each case whether as a Permitted Preferred Stock Distribution or otherwise and without regard to whether or not there is any Default or Event of Default, (ii) the contribution of the Xxxxxxx/Century Midstream Assets contemplated by the Xxxxxxx/Century JV Transaction, (iii) the sale of Equity Interests in an Unrestricted Subsidiary, or (iv) the following sales, assignments, farm-outs, conveyances and/or transfers; provided, no Default or Event of Default exists or will exist after giving effect to such sale, assignment, conveyance, farm-out or transfer:
(a) a transfer of Material IP owned by assets between or among Borrower and its Restricted Subsidiaries;
(b) an issuance or sale of Equity Interests in a Loan Party Restricted Subsidiary to Parent the Borrower or to another Restricted Subsidiary;
(c) the sale, lease or other disposition of produced Hydrocarbons, equipment, inventory, accounts receivable or other properties or assets in the ordinary course of business, including, without limitation, any abandonment, farm-in, farm-out, lease or sublease of any oil and gas properties or the forfeiture or other disposition of such properties pursuant to standard form operating agreements, in each case in the ordinary course of business in a Subsidiary that is not a Loan Party manner customary in the oil and gas business;
(d) the sale or other disposition of cash or cash equivalents;
(e) subject to the mandatory prepayment requirements in Section 3.04(c), the sale or other disposition (including Casualty Events) of any Oil and Gas Property or any interest therein or any Restricted Subsidiary owning Oil and Gas Properties; provided that
(1) Borrower shall provide the Administrative Agent at least ten (10) days prior written notice of any sale, assignment, conveyance or transfer hereunder,
(2) 100% of the consideration received in respect of such sale or other disposition shall be cash,
(3) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Oil and Gas Property, interest therein or the Restricted Subsidiary subject of such sale or other disposition (as reasonably determined by the Board of Directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer of the Borrower certifying to that effect),
(4) if such sale or other disposition of Oil and Gas Property when combined with any other sales under this Section 9.11(e) occurring between Scheduled Redetermination Dates results in a sale of more than ten percent (10%), in the aggregate, of the value of proved developed Oil and Gas Properties included in the most recently delivered Reserve Report, such sale or disposition shall be subject to the written consent of the Administrative Agent, not to be unreasonably withheld, and the Borrowing Base may be immediately redetermined pursuant to Section 2.07 and the Borrower shall pay any Borrowing Base Deficiency in accordance with Section 3.04(c), and
(5) if any such sale or other disposition is of a Restricted Subsidiary owning Oil and Gas Properties, such sale or other disposition shall include all the Equity Interests of such Restricted Subsidiary; and
(f) the sale, conveyance, transfer, lease or other disposition of (i) Eligible Midstream Assets and (ii) cash to an Unrestricted SubsidiarySubsidiary pursuant to Section 9.05(m).
Appears in 1 contract
Sale of Assets. The No Loan Parties (other than, subject to Section 7.14, Parent) will notParty shall, and will not no Loan Party shall suffer or permit any of their Restricted its Subsidiaries to, conveydirectly or indirectly, sell, assign, lease, assignconvey, transfer or otherwise dispose of (whether in one or a series of transactions) any property (including the Capital Stock of any Subsidiary of any Loan Party (but explicitly excluding any Capital Stock of Borrower which shall be permitted without limitation so long as there is no Change of Control), whether in a public or a private offering or otherwise, and accounts and notes receivable, with or without recourse) or enter into any agreement to do any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)foregoing, except:
(a) the sale dispositions to any Person other than an Affiliate of a Loan Party of Inventory, or other disposition of immaterial, surplusworn out, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into surplus Equipment in the ordinary course of business;
(fb) any sale dispositions of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentcash and Cash Equivalents;
(gc) settlementsexclusive or non-exclusive licenses and sublicenses granted by a Loan Party and leases or subleases (by a Loan Party as lessor or sublessor) to third parties in the ordinary course of business not interfering with the business of the Loan Parties or any of their Subsidiaries;
(d) the abandonment of Intellectual Property that, write-offsin the reasonable business judgment of Borrower, discount, sales is no longer economically practicable to maintain or other dispositions useful in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesany Loan Party;
(he) disposition of assets as a result of a casualty loss sales, forgiveness or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower)discounting, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma non-recourse basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To , of past due accounts in connection with the extent collection or compromise thereof or the Required Lenders settlement of delinquent accounts or in connection with the bankruptcy or reorganization of suppliers or customers;
(or all Lendersf) dispositions resulting from any casualty events;
(g) dispositions resulting from any Permitted Licenses; and
(h) sales, if required under Section 10.2) waive the provisions transfers and dispositions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, assets so long as (i) before and after giving effect thereto no Default or Event of Default shall have occurred and be continuing and the Loan Parties are in pro forma compliance with the financial covenants set forth in Section 7.3 hereof and (ii) the value of all assets sold or otherwise disposed of in any fiscal year does not exceed fifteen percent (15%) of the total assets of the Borrower or applicable Loan Party shall have provided the Administrative Agent and its Subsidiaries on a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary consolidated basis in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)fiscal year.
Appears in 1 contract
Sale of Assets. The Loan Parties Subject to the terms and conditions set forth herein and in the Bid Procedures Order and the Sale Order, at each Closing, each Seller shall sell, assign, assume and assign, transfer, convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from each Seller, free and clear of any Liens other than Permitted Liens, all of such Seller’s right, title and interest in, to and under all of its assets, properties and rights of every kind and nature, whether real or personal, tangible or intangible, in each case, other than the Excluded Assets (collectively, the “Assets”), including the following:
(i) the Store Leases and the Corporate Headquarters Lease, together with (only to the extent of such Seller’s interest therein) the Improvements located on or attached to the underlying real property, and all rights arising out of the ownership thereof including: all options and rights of first refusal, all Real Property Documents creating or modifying any such interest, and all of such Seller’s rights, title and interest in and under such Real Property Documents related to such Store Property or Corporate Headquarters; all easements and rights-of-way; water rights; rights, title and interest in all strips and gores; all reciprocal easements; all alleys and the land laying in the bed of any street, road or right-of-way; all of such Seller’s right, title and interest in and to any award made or to be made in lieu thereof, and in and to any unpaid award, for any taking by condemnation of, or any damages to, any Store Property or the Corporate Headquarters by reason of a change of grade of any street, road or avenue; and all tenements, hereditaments, appurtenances and other thanreal property rights appertaining thereto, subject to the rights of the landlord (including rights to ownership or use of such property) under such Store Leases or the Corporate Headquarters Lease;
(ii) each lease, sublease, concessionaire agreement, license or other occupancy agreement listed in Section 1.1(a)(ii) of the Disclosure Schedule to the extent the same relates to the Store Properties or the Corporate Headquarters (each, an “Assigned License”);
(iii) each contract set forth in Section 1.1(a)(iii) of the Disclosure Schedule (each, an “Assigned Contract”);
(iv) if and to the extent assignable, all third party guarantees and warranties (collectively, the “Guarantees”) to the extent they relate to the ownership or operation of the Store Properties, the Inventory or the Equipment;
(v) all union contracts, collective bargaining agreements and other labor agreements relating to persons employed at, or in connection with, the Store Properties, to the extent they relate to the Store Properties, or the operation of the Business at the Store Properties, including as listed on Section 1.1(a)(v) of the Disclosure Schedule (collectively, the “Labor Agreements”), including the requirement that Buyer offer to hire all existing bargaining unit employees at the Store Properties without change in salary, benefits or seniority, except as may be agreed between Buyer and the applicable unions (and communicated to Sellers) prior to the applicable Closing, as further provided herein;
(vi) all computer, networking, security and telephone hardware and software, furniture, furnishings, signage, forklifts and other vehicles, equipment, machinery, tooling, parts, racking, refrigerators, freezers, fixtures, trade fixtures, shopping carts, shelf tags, aisle markers, check stands, electronic surveillance equipment, store models, shelving and other tangible personal property located at the Store Properties and the Corporate Headquarters and wherever located in support of the Store Properties and the IT Systems as of the date hereof and owned by such Seller or any Affiliate thereof, including IT Systems and all Starbucks equipment (“Starbucks Equipment”) (solely if and to the extent Starbucks has consented in writing to the transfer of such Starbucks Equipment to Buyer) and point-of-sale and check cashing technologies and all other in-store information technology equipment and software (solely if and to the extent such software is freely transferable to Buyer or for which Sellers obtain consent to transfer to Buyer) and all devices and pinpads related thereto, together with all rights of such Seller or any Affiliate thereof against the manufacturers and/or suppliers of such equipment, and any and all rights to any software used in any computer equipment included in the Assets (solely if and to the extent such rights to any such software are freely transferable to Buyer or for which Sellers obtain consent to transfer to Buyer) (collectively, the “Equipment”);
(vii) any signs or personal property which contain the name (or trade name or derivative thereof) or logo of such Seller, including all uniforms supplied to such Seller’s employees;
(viii) to the extent (A) permitted under applicable Law and (B) related to the Store Properties or the Corporate Headquarters or their customers or employees, all files, documents, instruments, papers, computer files, data (including customer and employee data and including emails) and records and all other non-privileged books and records of such Seller or any Affiliate thereof in any form or media (collectively, the “Files and Records”), but (x) excluding any “Files and Records” related to Store Employees who are not Transferred Employees, except information required to be disclosed in Section 2.13(a) and (y) Sellers may retain copies any “Files and Records” related to Store Employees who are Transferred Employees;
(ix) all Intellectual Property of such Seller and its Affiliates, including trademarks, service marks, trade names, domain names, web sites and similar intangibles including any right to use, or interest in, any of the name of such Seller or any Affiliate thereof, or any similar name or intangible registered or licensed to any of the foregoing, or any trade names used by such Seller or any Affiliate thereof;
(x) all Inventory (including all private label, pharmacy inventory and all Inventory in transit as of immediately prior to the Effective Time) of such Seller, other than Excluded Inventory;
(xi) all security, vendor, utility and other deposits actually being held by a third party (the “Deposits”) related to the Store Properties or the Corporate Headquarters, and all prepaid rent and other prepaid expenses related to the Store Properties or the Corporate Headquarters (collectively, the “Prepaid Expenses”);
(xii) all Pharmacy Assets, including, subject to all applicable Laws including, without limitation, those governing the transfer of personal health information, all Pharmacy Records (which shall be provided to Buyer in an electronic format, reasonably agreeable to Buyer and Sellers, and in accordance with all applicable state board of pharmacy and Drug Enforcement Administration (“DEA”) regulations); provided, however, in the event Buyer requests conversion of such electronic format to another format for any reason whatsoever, the cost of such conversion shall be at Buyer’s sole cost and expense;
(xiii) to the extent transferable in accordance with applicable Law, all Permits, federal and state registrations and licenses and all pending applications therefor, in each case, primarily related to the other Assets, including all beer/wine and spirits liquor licenses (collectively, the “Liquor Licenses”) related to the Store Properties;
(xiv) Closing Cash;
(xv) all goodwill of such Seller and its Affiliates associated with any of the other Assets transferred at such Closing;
(xvi) all of such Seller’s rights, claims, causes of action and avoidance claims under Chapter 5 of the Bankruptcy Code (whether or not asserted as of the Effective Time) to the extent they relate to vendors, employees, landlords, suppliers, customers and other counterparties of Sellers that relate to any of the Assets, or the operation of the Business at the Store Properties, on or after the applicable Effective Time (but not any such claims described in the Stipulation and Order Granting Derivative Standing to the Official Committee of Unsecured Creditors [Docket No. 1235]) (the “Avoidance Actions”); and
(xvii) each parcel of land more particularly described on Exhibit 1.1(xvii) attached hereto (the “Land”), together with the Improvements located on or attached to the underlying real property, and all rights arising out of the ownership thereof, including: all of such Sellers’ rights, title and interest, if any, to: any transferrable oil, gas, and mineral rights related to the Owned Real Property, all options and rights of first refusal, all Real Property Documents creating or modifying any such interest, and all of such Seller’s rights, title and interest in and under such Real Property Documents related to such Owned Real Property; all easements and rights-of-way; water rights; rights, title and interest in all strips and gores; all reciprocal easements; all alleys and the land laying in the bed of any street, road or right-of-way, subject to Section 7.141.7 hereof; all of such Seller’s right, Parent) will nottitle and interest in and to any award made or to be made in lieu thereof, and will not permit in and to any of their Restricted Subsidiaries unpaid award, for any taking by condemnation of, or any damages to, convey, sell, lease, assign, transfer or otherwise dispose any Owned Real Property by reason of a change of grade of any of its assetsstreet, business road or avenue; and all tenements, hereditaments, appurtenances and other real property or, rights appertaining thereto (all rights and interests described in this Section 1.1(a)(vxiixvii) being referred to collectively as the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law“Real Property”), except:
subject only to Permitted Exceptions and those liabilities, liens, obligations and encumbrances which are expressly assumed by Buyer pursuant to Section 1.1(c). Notwithstanding anything to the contrary contained in this Agreement, all Assets which are (a) located at, or otherwise primarily related to, a Store Property (“Store Assets”) shall be transferred and assigned to Buyer hereunder at the sale or other disposition of immaterialClosing for such Store Property, surplus, obsolete or worn out property or other property not necessary for operations;
and (b) the sale not located at, or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patentsotherwise primarily related to, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditStore Property, including defaulted the Corporate Headquarters Lease and any Assets located at, or past due receivables;
otherwise primarily related to, the Corporate Headquarters (h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower)collectively, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i“Corporate Assets”) shall exist or result therefrom, be transferred and (ii) not less than 75% of assigned to Buyer hereunder at the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Initial Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose (collectively, a “Disposition”) of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than to the Borrower or a Guarantor (other than Parent) Subsidiary Loan Party (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition Disposition, in the ordinary course of immaterialbusiness, for fair market value of surplus, obsolete obsolete, used or worn out property or other property not necessary for operationsproperty;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Investments in the ordinary course of business;
(fc) any sale Dispositions made to the extent expressly permitted by Section 7.3;
(d) Investments made to the extent expressly permitted by Section 7.4;
(e) Dispositions of any assets to the Borrower or a Subsidiary; provided that if the transferor of such property is a Loan Party, (other than their own stock or stock equivalentsi) by any Restricted Subsidiary to any the transferee thereof must be a Loan Party or (other than Parentii) to the extent such transaction constitutes an Investment, such transaction must be expressly permitted by Section 7.4;
(f) the unwinding of any resulting Investment constitutes a Permitted InvestmentHedging Transaction pursuant to its terms;
(g) settlementsDispositions of inventory in the ordinary course of business;
(h) the non-exclusive licensing of patents, write-offstrademarks, discountcopyrights and other intellectual property rights in the ordinary course of business;
(i) leases or subleases of real property;
(j) any involuntary loss, sales damage or other dispositions destruction of property;
(k) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(l) Dispositions of cash and cash equivalents in the ordinary course of business; LEGAL02/42400466v16
(m) Dispositions of equipment in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
to the extent that (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions the relevant property is exchanged for credit against the purchase price of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) similar replacement property or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% the proceeds of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant relevant Disposition are promptly applied to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary purchase price of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdingsreplacement property;
(n) dispositions by a Loan Party to another Loan Party (other than Parent)Dispositions of accounts receivable in connection with the collection or compromise thereof;
(o) tradeDispositions, terminations or non-ins renewals of leases or other exchanges subleases which are part of tangible assets for other tangible assets a business optimization plan of comparable a Loan Party and terminations or greater value useful non-renewals of licensing agreements that are not material to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to (i) the Disposition, termination or non-renewal of which will not materially interfere with the business of the Borrower and its Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line to the extent such Restricted Subsidiaryclosing or discontinuation is permitted pursuant to the terms herein;
(p) the sale or other disposition of Investments (i) by Insurance Subsidiaries and their Subsidiaries (other than the Capital Stock of Insurance Subsidiaries and their Subsidiaries) and (ii) by the Borrower and its Restricted Subsidiaries (other than the Capital Stock of Subsidiaries of the Borrower) permitted under this Agreement, in each case, (A) in the ordinary course of business and consistent with the investment policy approved by the board of directors of the Borrower or such Insurance Subsidiary, as the case may terminate be or unwind any Hedging Transaction in accordance with its terms(B) required by Insurance Regulatory Authorities;
(q) the any sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for Reinsurance Agreement so long as such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses disposition is entered into in the ordinary course of business. To business for the extent purpose of managing insurance risk consistent with industry practice and the Required Lenders investment policy approved by the board of directors of the Borrower or the applicable Insurance Subsidiary, as the case may be; and
(or all Lenders, if required under Section 10.2r) waive the provisions Dispositions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 property (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear the Disposition of the Liens created any Capital Stock of any Subsidiary directly or indirectly owned by the Collateral Documents, and Borrower) in an aggregate amount (based on the Administrative Agent is authorized fair market value of such assets) not to take and shall take exceed $5,000,000 in any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)calendar year.
Appears in 1 contract
Samples: Credit Agreement (Skyward Specialty Insurance Group, Inc.)
Sale of Assets. The No Loan Parties (other thanParty shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, (except in the case of any Restricted Subsidiary, the Borrower) issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplusin each case in the ordinary course of business, obsolete and the sale or worn out property disposition of private or other property not necessary for operationsself-pay Accounts that are more than 270 days past the Discharge Date;
(b) the sale or other disposition of (i) inventory Equipment that has become obsolete, worn-out surplus or is no longer used or useful in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the such Loan Parties;
(d) the sale, assignment, transfer Party or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into is replaced in the ordinary course of business;
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction;
(d) assignments and licenses of intellectual property of the Loan Parties in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor;
(f) any sale Group Member can issue or sell any shares of its Stock or any property (other than their own stock or stock equivalents) by Stock Equivalents thereof in connection with any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentbona fide joint venture arrangement;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditany Asset Sale, including defaulted the sale or past due receivables;disposition of hospital facilities owned by any Loan Party, disclosed on Schedule 8.4 (Asset Sales); AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(h) disposition as long as no Default or Event of assets as a Default is continuing or would result of a casualty loss or condemnation proceeding;
therefrom, any other Asset Sale not otherwise permitted under clauses (a) through (g) above; provided, however, that with respect to any such Asset Sale pursuant to this clause (h), (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are such Asset Sale is made for fair market Fair Market Value, as determined at the earlier of (x) at the time the legally binding commitment for such Asset Sale was entered into and (y) if no legally binding commitment was entered into, the date of such Asset Sale, in each case without giving effect to subsequent change in value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) a Group Member shall either (x) receive not less than 75% of the aggregate sales price for such sale or other disposition shall be paid consideration in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower excess of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law $37,500,000 in the jurisdiction form of incorporation of any Restricted Subsidiary cash or the Borrower, any sale Cash Equivalents or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(py) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) aggregate non-cash consideration received for all other Asset Sales consummated after the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount Amendment No. 4 Effective Date does not exceed the greater of (x) $20,000,000 500,000,000 and (y) 282.16% of Consolidated EBITDA (for Total Assets as of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredFinancial Statements were delivered pursuant to Section 6.1(a) or (b) (Financial Statements at any time (provided, calculated on that for purposes of this clause (ii), (A) secured notes issued by the buyer of such assets that are secured by the assets being sold and evidencing obligations to pay up to 20% of the cash consideration for any such Asset Sale, (B) any securities received by any Group Member from such Asset Sale that are converted by such Group Member into cash or Cash Equivalents within 180 days following the closing of the applicable Asset Sale and (C) any liability assumed by the buyer of such assets in connection with any such Asset Sale, in each case shall be considered cash and Cash Equivalents); provided, further, that if Collateral with a value in excess of $30,000,000 is the subject of any one or more Asset Sales pursuant to this clause (h) in any given calendar year, the Borrower shall deliver an updated Borrowing Base Certificate giving pro forma basis for effect thereto on or prior to the date of consummation of such sale or other disposition) during the term of this AgreementAsset Sale;
(ri) the Borrower sale or disposition of Stock or Stock Equivalents of any Unrestricted Subsidiary or Immaterial Subsidiary;
(j) any Investment permitted by Section 8.3 (Investments) and its (ii) any Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryPayment permitted by Section 8.5 (Restricted Payments); and
(sk) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (sale or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or assets not constituting Collateral if prior to and after giving effect to any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral sale of assets the Excess Availability Condition shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)satisfied.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Parent shall not, and will not nor shall it permit Borrower or any Restricted Subsidiary to, sell, convey, transfer, lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Borrower, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents, surplus, obsolete or worn out property Inventory or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory assets, in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock equipment that has become obsolete, damaged, surplus or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to otherwise no longer used or useful in the extent any resulting Investment constitutes a Permitted Investmentordinary course of business or is replaced in the ordinary course of business;
(gc) settlements, write-offs, discount, any Recovery Event (without giving effect to the limitations in the definition thereof);
(d) sales or other dispositions without recourse and in the ordinary course of business of extension overdue accounts receivable in connection with the compromise or collection thereof;
(e) the licensing, sublicensing or other similar ordinary course transfers (but not sales) of trade creditintellectual property rights (on an exclusive or non-exclusive basis) to the extent that the foregoing occurs on an arms-length basis;
(f) the settlement, including defaulted release or past due receivablessurrender of tort or other litigation claims;
(g) asset contributions for no cash consideration (or its equivalent) to the extent constituting an Investment permitted by Section 8.3(e) (Investments);
(h) disposition of assets as a result of a casualty loss Assets Sales (i) among the Loan Parties, (ii) among Qualified Restricted Subsidiaries, and (iii) among Restricted Subsidiaries that are not Qualified Restricted Subsidiaries or condemnation proceeding;Loan Parties; Term Loan Agreement Collective Brands Finance, Inc.
(i) Investments made in accordance with Section 7.4a true lease or sublease of Real Property not constituting Indebtedness and not constituting a Sale Leaseback;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value property pursuant to a Permitted Sale Leaseback; provided, however, that with respect to any such Asset Sale pursuant to this clause (as reasonably determined by the Borrowerj), so long (i) no Event an amount equal to all Net Cash Proceeds of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefromsuch Asset Sale are applied to the payment of the Obligations as set forth in, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Propertyrequired by, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and Section 2.7 (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanNone of Ultimate Parent Co-Borrower, subject to Section 7.14Holdco Co-Borrower, Parent) will notWII Co-Borrower, and will not Parent or Arby’s Opco Borrower shall, nor shall they permit any of their Restricted Subsidiaries Subsidiary to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of any of its their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, business or property or, except in the case of any Restricted SubsidiaryUltimate Parent Co-Borrower, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the liquidation, sale or other disposition of immaterialCash Equivalents or inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementsEquipment that has become surplus, write-offsworn out, discountobsolete, sales or other dispositions is replaced in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesis no longer used or useful in the business;
(hc) disposition the discount or write-off of assets as accounts receivable overdue by more than 90 days or the sale of any such accounts receivable for the purpose of collection to any collection agency, in each case in the ordinary course of business;
(d) licenses and sublicenses of Intellectual Property in the ordinary course of business;
(e) the cancellation of any Indebtedness permitted to be cancelled under Section 8.6(a);
(f) the issuance of Nominal Shares;
(g) a result true lease or sublease of any property not constituting Indebtedness and not constituting a casualty loss or condemnation proceedingsale and leaseback transaction;
(i) Investments any Asset Sale to Arby’s Opco Borrower, WII Co-Borrower, or any Subsidiary Guarantor, (ii) any Asset Sale to any Non-Guarantor to the extent, after giving effect to such Asset Sale (and any other Asset Sale or Investment in Non-Guarantors to be made in accordance with on or prior to the date of such Asset Sale), the Non-Guarantor Investment Amount does not exceed $15,000,000, (iii) any Asset Sale by any Non-Guarantor to any Non-Guarantor and (iv) any Asset Sale by any Non-Guarantor to any Loan Party (including through a liquidation, disposition or winding up) as long as the consideration given by the Loan Parties to such Non-Guarantor does not exceed the Fair Market Value of the assets transferred to such Loan Parties;
(i) the liquidation or merger of any Subsidiary of Arby’s Opco Borrower or WII Co-Borrower to the extent such liquidation or merger is permitted pursuant to clause (x) of Section 7.48.7;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) as no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) is continuing or 8.1(i) shall exist or would result therefrom, and any Asset Sale for not less than Fair Market Value; provided, however, that with respect to any such Asset Sale pursuant to this clause (j), (i) the assets comprised by all Asset Sales in any Fiscal Year pursuant to this clause (j) shall not, in the aggregate, exceed 20% of the Consolidated Net Tangible Assets of Ultimate Parent Co-Borrower as of the start of such Fiscal Year, (ii) not less than 75% of the aggregate sales price for consideration received in respect of such sale or Asset Sale and all other disposition Asset Sales previously consummated in the same Fiscal Year pursuant to this clause (j) shall be paid cash, and all such cash shall (in cashthe case of previously consummated Asset Sales) have been received or (in the case of the present Asset Sale) be payable upon the consummation of such Asset Sale and (iii) an amount equal to all Net Cash Proceeds of such Asset Sale is applied to the payment of the Obligations as set forth in, and to the extent required by, Section 2.9;
(k) as long as no Event of Default is continuing or would result therefrom, any Asset Sale the primary purpose of which is to exchange or swap assets and for which 90% or more of the consideration consists of assets other than cash or Cash Equivalents; provided, however, that with respect to any such Asset Sale pursuant to this clause (k), (i) the Fair Market Value of the assets transferred by such Asset Sale and all other Asset Sales in the same Fiscal Year pursuant to this clause (k) shall not, in the aggregate, exceed $15,000,000, (ii) the Fair Market Value of the consideration received shall be not less than the Fair Market Value of the assets sold or transferred, and compliance with the foregoing requirement shall be evidenced by (x) in the case of an Asset Sale or related series of Asset Sales involving aggregate consideration (other than cash and Cash Equivalents) with a Fair Market Value in excess of $1 million, a certification by the chief financial officer of a Borrower and (y) in the case of an Asset Sale or related series of Asset Sales involving aggregate consideration (other than cash and Cash Equivalents) with a Fair Market Value in excess of $5 million, a resolution of the Board of Directors of a Borrower, in each case delivered to the Administrative Agent not less than five Business Days prior to the consummation of such Asset Sale, and (iii) an amount equal to all Net Cash Proceeds of such Asset Sale is applied to the payment of the Obligations as set forth in, and to the extent required by, Section 2.9;
(l) Liens permitted under as long as no Event of Default is continuing or would result therefrom, any other Asset Sale for not less than Fair Market Value; provided that (i) the Fair Market Value of all assets sold, transferred or otherwise disposed of pursuant to this clause (l) shall not, in the aggregate, exceed $20,000,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale is applied to the payment of the Obligations as set forth in, and to the extent required by, Section 7.22.9;
(m) (i) any Arby’s Opco Borrower, WII Co-Borrower and Restricted Subsidiaries may sell or otherwise transfer equipment in connection with sale or issuance by and leaseback transactions; provided that the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary aggregate value of the Borrower of its own Qualified Capital Stock to equipment sold or transferred under this subsection shall not exceed $5,000,000 in any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;Fiscal Year; and
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges sales of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate loans purchased pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of businessSection 8.3(o). To the extent the Required Requisite Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 8.4 with respect to the conveyance, sale, lease, assignment or other disposition sale of any Collateral, or any Collateral is sold sold, transferred or otherwise disposed of as permitted by this Section 7.6 8.4, such Collateral (unless sold, transferred or otherwise disposed of to Ultimate Parent Co-Borrower or any of its Subsidiaries (other than a Non-Guarantor Subsidiary if sold, transferred or disposed of pursuant to a Loan Party clause (other than Parenth)(ii) above))) shall be sold, such Collateral shall automatically be deemed sold transferred or otherwise disposed of free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and Agents shall take any all actions reasonably requested by the Borrower they deem appropriate in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanNeither the Parent nor the Borrower shall, subject to Section 7.14, Parent) will not, and will not nor shall they permit any of their Restricted respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Parent, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an "ASSET SALE"), except:except for the following: 111 CREDIT AGREEMENT PRESTIGE BRANDS, INC.
(a) the liquidation, sale or other disposition of immaterialCash Equivalents or inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementsEquipment that has become surplus, writeworn-offsout, discountobsolete, sales or other dispositions is replaced in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesis no longer used or useful in the business;
(hc) disposition the discount or write-off of assets as a result accounts receivable overdue by more than 90 days or the sale of a casualty loss or condemnation proceedingany such account receivables for the purpose of collection to any collection agency, in each case in the ordinary course of business;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To business of Intellectual Property (A) registered outside of the extent United States or (B) having an aggregate Fair Market Value whose Dollar Equivalent does not exceed $10,000,000 or (ii) the Required Lenders Foreign IP Transfer;
(or all Lenders, if required under Section 10.2e) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition cancellation of any CollateralIndebtedness permitted to be cancelled under SECTION 8.6(a) (PREPAYMENT AND CANCELLATION OF INDEBTEDNESS);
(f) the issuance of Nominal Shares;
(i) a true lease or sublease of any property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction, or any Collateral is sold in each case as permitted by this Section 7.6 under SECTION 8.16 (other than SALE AND LEASEBACK TRANSACTIONS);
(i) any Asset Sale to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else any Subsidiary Guarantor and (ii) any Asset Sale to any Non-Guarantor to the contrary extent, after giving effect to such Asset Sale (and any other Asset Sale or Investment in Non-Guarantors to be made on or prior to the Loan Documentsdate of such Asset Sale), the Borrower will notDollar Equivalent of the Non-Guarantor Investment Amount does not exceed $20,000,000, (iii) any Asset Sale by any Non-Guarantor to any Non-Guarantor and will not permit (iv) any Subsidiary to, permit Asset Sale by any transfer of Material IP owned by a Loan Party Non-Guarantor to Parent or a Subsidiary that is not a any Loan Party (including through a liquidation, disposition or winding up) as long as the consideration given by the Loan Parties to such Non-Guarantor does not exceed the Fair Market Value of the assets transferred to such Loan Parties;
(i) (A) the liquidation or merger of any Unrestricted SubsidiarySubsidiary of the Parent, to the extent such liquidation or merger is permitted pursuant to CLAUSE (w) or (x) of SECTION 8.7 (RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED ACQUISITIONS) and (B)(x) any disposition of the Stock or Stock Equivalents or other interests in any Permitted Joint Venture for not less than Fair Market Value and all of the consideration for which is payable in cash or (y) any pro rata disposition of the assets of a Permitted Joint Venture to investors, participants or holders of Stock and Stock Equivalents in such Permitted Joint Venture in connection with the dissolution or termination of such Permitted Joint Venture Permitted Joint Venture, pursuant to and in accordance with the Contractual Obligations relating to such Permitted Joint Venture; PROVIDED, HOWEVER, that, with respect to any such Asset Sale pursuant to this CLAUSE (i)(B)(x), the Dollar Equivalent of the aggregate consideration received by Parent or any of its Subsidiaries during any Fiscal Year for all such Asset Sales shall not exceed $25,000,000; and PROVIDED, FURTHER, that, with respect to any such Asset Sale pursuant to this CLAUSE (i)(B), an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, SECTION 2.9 (MANDATORY PREPAYMENTS); 112 CREDIT AGREEMENT PRESTIGE BRANDS, INC.
(j) as long as no Default or Event of Default is continuing or would result therefrom, any Asset Sale for not less than Fair Market Value, all of the consideration for which shall be payable in cash upon such sale, within 360 days of the consummation of a Permitted Acquisition, of non-core assets acquired as part of such Permitted Acquisition and subject to a Permitted Acquisition Notice with respect to such Permitted Acquisition; PROVIDED, HOWEVER, that, with respect to any such Asset Sale permitted pursuant to this CLAUSE (j), an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, SECTION 2.9 (MANDATORY PREPAYMENTS); and
(k) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for not less than Fair Market Value, 75% of the consideration for which shall be payable in cash upon such sale; PROVIDED, HOWEVER, that with respect to any such Asset Sale pursuant to this CLAUSE (k), the Dollar Equivalent of the aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $15,000,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, SECTION 2.9 (MANDATORY PREPAYMENTS).
Appears in 1 contract
Samples: Credit Agreement (Prestige Brands International, Inc.)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, wind up, liquidate or dissolve its affairs, or sell, convey, selltransfer, lease, assign, transfer lease (including in a sale and leaseback transaction) or otherwise dispose of, all or any part of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock's Stock or Stock Equivalent (any such disposition being an "Asset Sale"), in each case whether now owned domestic or hereafter acquiredforeign, to any Person other than except for the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptfollowing:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that, other than in respect of the sale of the Pocatello Equipment, the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $5,000,000; and provided further, however, that the proceeds from any sale in respect of the Pocatello Equipment shall be used solely to fund obligations in respect of required Remedial Action;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Required Lenders Borrower and its Subsidiaries in the ordinary course of business;
(e) any Like Kind Exchange;
(f) any transfer of assets by the Borrower or all Lenders, if required under any of its Subsidiaries as consideration for an Investment permitted by Section 10.28.3;
(g) waive the provisions of this Section 7.6 with respect any Asset Sale to the conveyance, sale, lease, assignment or other disposition of any Collateral, Borrower or any Collateral is sold as permitted by this Section 7.6 Guarantor (other than to a Loan Party any Principal Property (other than Parentas defined in the indentures governing the Existing Public Debt)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so ; and
(h) as long as the Borrower no Default or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).Credit Agreement FMC Corporation
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries toto (i) convey, sell, lease, assign, transfer or otherwise dispose of, any of the Borrower’s assets or property, whether now owned or hereafter acquired, to any Person other than, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, a Wholly Owned Subsidiary, (ii) in the case of any Subsidiary that is a Wholly Owned Subsidiary, convey, sell, lease, assign, transfer or otherwise dispose of of, any of its assetsassets or property, business whether now owned or property orhereafter acquired, to any Person other than, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower or any Wholly Owned Subsidiary, (iii) in the case of any Restricted Subsidiary that is not a Wholly Owned Subsidiary, convey, sell, lease, assign, transfer or otherwise dispose of, any shares of such Restricted Subsidiary’s Capital Stockits assets or property, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor any Subsidiary of the Borrower or (iv) in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s common stock to any Person other than Parent) the Borrower or any of the Borrower’s Subsidiaries (or to qualify directors if required by applicable law), except:
in each case of clauses (i) through (iv), other than (a) the sale or other disposition of immaterialsale-lease back transactions permitted by this Agreement, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale Designated Asset Sales, (c) sales, leases and charters of inventory, equipment or other disposition of (i) inventory assets in the ordinary course of business and (iid) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patentssales, Trademarks, Copyrights dispositions and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments transactions permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty Sections 7.3, 7.4 and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)7.5 above.
Appears in 1 contract
Sale of Assets. The Loan Parties Neither the Borrower nor any of its Subsidiaries (other thanthan Excluded Foreign Subsidiaries) shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted Subsidiarythe Borrower, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an "Asset Sale"), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(fb) any the sale or disposition of any property (other than their own stock Equipment that has become obsolete or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions is replaced in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceedingbusiness;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales a true lease or sublease of Real Property not constituting Indebtedness and other dispositions of assets by the Borrower not constituting a Sale and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, Leaseback Transaction and (ii) not less than 75% of the aggregate sales price for such a sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction Transaction, in an aggregate amount not exceed the greater of each case as permitted under Section 8.15 (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this AgreementOperating Leases; Sale/Leasebacks);
(rd) assignments and licenses of intellectual property of the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To ;
(e) any Asset Sale to the extent the Required Lenders Borrower or any Guarantor;
(f) as long as no Default or all LendersEvent of Default is continuing or would result therefrom, if required under Section 10.2) waive the provisions of this Section 7.6 any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such Asset Sale pursuant to this Section 7.6 clause (other than to a Loan Party (other than Parent)f), such Collateral shall automatically be deemed sold free and clear (i) the Dollar SECOND LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY Equivalent of the Liens created by aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $5,000,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the Collateral Documentspayment of the Obligations as set forth in, and to the Administrative Agent extent required by, Section 2.7 (Mandatory Prepayments);
(g) as long as no Default or Event of Default is authorized continuing or would result therefrom, an Asset Sale for Fair Market Value payable in cash in respect of the Stock or assets of the Little Giant Pump Company; provided, however, that such (i) Asset Sale is consummated on or prior to take July 31, 2006 and (ii) the Net Cash Proceeds from such sale are applied to the Obligations as set forth in, and to the extent required by, Section 2.7(b);
(h) the sale of (x) certain Investment Property set forth on Schedule 8.4(a) in an aggregate Net Cash Proceeds of which shall take any actions reasonably requested by not exceed $500,000 and (y) the Borrower Borrower's Investments in order to effect and/or evidence the foregoingKulthorn Xxxxx, so long as the Borrower each sale in clauses (x) and (y) are consummated on or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing prior to July 31, 2006; and
(i) so long as no Default or anything else to the contrary Event of Default is continuing or would result from any sale hereunder, and so long as an Asset Sale is made for Fair Market Value, payable in the Loan Documentscash, the Borrower will not, and will not permit any Subsidiary to, permit any transfer sale of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiarycertain Real Property set forth on Schedule 8.4(b).;
Appears in 1 contract
Samples: Second Lien Credit Agreement (Tecumseh Products Co)
Sale of Assets. The No Loan Parties (other thanParty shall sell, subject to Section 7.14convey, Parent) will nottransfer, and will not permit lease or otherwise dispose of, any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer respective assets or otherwise dispose any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, (except in the case of any Restricted Subsidiary, the Borrower) issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialCash Equivalents or Inventory, surplusin each case in the ordinary course of business, obsolete and the sale or worn out property disposition of private or other property not necessary for operationsself-pay Accounts that are more than 270 days past the Discharge Date;
(b) the sale or other disposition of (i) inventory Equipment that has become obsolete, worn-out surplus or is no longer used or useful in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the such Loan Parties;
(d) the sale, assignment, transfer Party or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into is replaced in the ordinary course of business;
(c) (i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction;
(d) assignments and licenses of intellectual property of the Loan Parties in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor; AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION
(f) any sale Group Member can issue or sell any shares of its Stock or any property (other than their own stock or stock equivalents) by Stock Equivalents thereof in connection with any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investmentbona fide joint venture arrangement;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade creditany Asset Sale, including defaulted the sale or past due receivables;disposition of hospital facilities owned by any Loan Party, disclosed on Schedule 8.4 (Asset Sales), subject to the proviso at the end of this Section 8.4; and
(h) disposition as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale not otherwise permitted under clauses (a) through (g) above; provided, however, that with respect to any such Asset Sale pursuant to this clause (h), (x) the aggregate book value of all assets as a result subject to all such Asset Sales following the Effective Date, after giving pro forma effect thereto, shall not exceed the higher of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions 35% of the Consolidated net book value of the assets by of the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by reflected on the Borrower)’s Consolidated balance sheet as at June 30, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, 2010 and (ii) not less than 7535% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary Consolidated net book value of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) as reflected on the sale or other disposition for fair market value Borrower’s Consolidated balance sheet as of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater last day of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the Fiscal Quarter most recently ended four consecutive Fiscal Quarter period prior to the consummation of such Asset Sale for which financial statements have been delivered, calculated on a pro forma basis delivered pursuant to Section 6.1 (Financial Statements); and (y) either (i) the seller of such assets shall receive at least 75% of the consideration for any such sale Asset Sale in cash or (ii) the aggregate non-cash consideration received for all other disposition) during Asset Sales consummated after the term date of this Agreement;
Agreement does not exceed $250,000,000 (r) provided, that for purposes of this clause (y), secured notes issued by the Borrower buyer of such assets that are secured by the assets being sold and its Restricted Subsidiaries may issue or sell evidencing obligations to pay up to 20% of the cash consideration for any Capital Stock insuch Asset Sale shall be deemed cash and any indebtedness assumed by the purchaser in connection with any such Asset Sale shall be considered cash); provided, or Indebtedness or other securities offurther, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses that in the ordinary course case of business. To the extent the Required Lenders any Asset Sale pursuant to clauses (g) or (h) above (or all LendersAsset Sales, if required under Section 10.2such assets are sold in a series of related transactions) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as assets having a net book value greater than $20,000,000 each such Asset Sale shall only be permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created hereby if it has been formally approved by the Collateral Documents, Borrower’s board of directors and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)on reasonable arms’ length terms.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of any of its assetstheir respective assets or any interest therein (including the sale or factoring of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital StockStock or Stock Equivalent (any such disposition in excess of $2,000,000.00 per transaction or series of related transactions, in each case whether now owned or hereafter acquired, to any Person other than being an “Asset Sale”) except for the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptfollowing:
(a) the sale or other disposition of immaterialinventory (including fabricated projects for customers, surplus, obsolete or worn out property or other property not necessary for operationssuch as offshore production platforms and related components) in the ordinary course of business;
(b) transfers resulting from any taking or condemnation of any property of the Borrower or any of its Subsidiaries (or, as long as no Default or Event of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) as long as no Default or Event of Default is continuing or would result therefrom, the sale or other disposition of (i) inventory equipment that the Borrower reasonably determines is no longer useful in its or its Subsidiaries’ business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Partiesbusiness;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the salelease or sublease or chartering of property not constituting a sale and leaseback, assignmentto the extent not otherwise prohibited by this Agreement or the Mortgages;
(e) as long as no Default or Event of Default is continuing or would result therefrom, transfer or lapse or abandonment non-exclusive assignments and licenses of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale as long as no Default or Event of any property (other than their own stock Default is continuing or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to would result therefrom, discounts, adjustments, settlements and compromises of Accounts and contract claims in the extent any resulting Investment constitutes a Permitted Investmentordinary course of business;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
any Asset Sale (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by to the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist any Wholly-Owned Loan Party or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful Party to the business Borrower or another Restricted Subsidiary of such Restricted Subsidiarythe Borrower;
(ph) the Borrower as long as no Default or Event of Default is continuing or would result therefrom, and its Restricted Subsidiaries may terminate subject to Section 2.9(a), any other Asset Sale (other than an Asset Sale in respect of a Mortgaged Vessel or unwind any Hedging Transaction Stock in accordance with its terms;
(qa Mortgaged Vessel Owning Subsidiary) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28Fair Market Value, at least 75% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredis payable in cash, calculated on a pro forma basis for Cash Equivalents or Specified Other Consideration upon such sale or other disposition) during the term sale. For purposes of this Agreement;
clause (r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock inh), or Indebtedness or other securities of“Specified Other Consideration” shall mean, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyanceany Asset Sale, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created i) Non-cash Consideration identified by the Collateral Documents, and Borrower to the Administrative Agent is authorized in writing as being “Specified Other Consideration” for such Asset Sale and the amount thereof; provided that the amount of such Non-cash Consideration, together with the amount of Specified Other Consideration described in this clause (i) for all other Asset Sales after the Effective Date does not exceed $40,000,000.00; and (ii) in connection with any assets or property directly related to take and shall take the Amazon, the amount of any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as liabilities or other obligations of the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Restricted Subsidiary that is not a Loan Party (including expressly assumed by the transferee of any Unrestricted Subsidiary).such assets or property;
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will not nor shall it permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, except in the case of any Restricted SubsidiaryHoldings, issue or sell any shares of their Stock or any Stock Equivalents (any such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawdisposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterialPermitted Investments or Inventory, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into each case in the ordinary course of business;
(b) the sale or disposition of Equipment that has become used, worn-out or obsolete or is promptly replaced (including by way of exchange for credit against the purchase price of replacement Equipment or by application of the sale proceeds of such sold Equipment) in the ordinary course of business;
(i) a true lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction and (ii) a sale of assets pursuant to a sale and leaseback transaction;
(d) assignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Guarantor;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) Asset Sale with respect to the extent any resulting Investment constitutes a Permitted InvestmentCGCP Plant for not less than Fair Market Value of the assets so disposed of;
(g) settlements, write-offs, discount, sales or other dispositions in any Asset Sale with respect to the ordinary course distribution and retail facilities of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made set forth on Schedule 8.4(g) (Permitted Asset Sales) for fair market value not less than Fair Market Value of the assets disposed of; provided, that at least 75% of the consideration received for each such Asset Sale shall be Cash Consideration;
(as reasonably determined by h) the Borrower), so long transfer to The Premcor Pipeline Company or another Subsidiary of the Parent of the Stock of the Pipeline Subsidiary and certain other pipeline and related assets having an aggregate Fair Market Value not in excess of $50,000,000;
(i) any Asset Sale made pursuant to the Crude Oil Supply Agreements; and
(j) as long as no Default or Event of Default under Section 8.1(a), 8.1(b), 8.1(h) is continuing or 8.1(i) shall exist or would result therefrom, any other Asset Sale for Fair Market Value; provided, however, that with respect to any such Asset Sale pursuant to this clause (j), (i) the Dollar Equivalent of the aggregate consideration received for all such Asset Sales shall not exceed (x) $100,000,000 in any Fiscal Year; provided, that to the extent that such aggregate consideration for all such Asset Sales consummated during any such Fiscal Year shall be less than $100,000,000 (without giving effect to the carryover permitted by this proviso), the difference (up to the amount of $50,000,000) between $100,000,000 and such aggregate consideration shall, in addition, be available for Asset Sales in the next succeeding Fiscal Year and (y) $500,000,000 since the Closing Date; and (ii) not less than at least 75% of the aggregate sales price consideration received for each such sale or other disposition Asset Sale shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of businessCash Consideration. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)CREDIT AGREEMENT THE PREMCOR REFINING GROUP INC.
Appears in 1 contract
Samples: Credit Agreement (Premcor Inc)
Sale of Assets. The Loan Parties (other thana) On the Closing Date, and subject to Section 7.14the terms and conditions of this Agreement, Parent) will notShire will, and will not permit any of their Restricted Subsidiaries cause its Affiliates to, convey, sell, lease, assign, convey and transfer to Duramed, and Duramed will purchase and accept from Shire and its Affiliates, all of Shire’s and its Affiliates’ right, title and interest in and to the following assets (collectively, the “Purchased Assets”):
(i) the Product NDA;
(ii) the Book and Records; provided that any lists included therein may be redacted as necessary to conceal information pertaining to products other than the Product;
(iii) the Technical Data;
(iv) all unfulfilled customer orders for the Product arising in the Territory as of the Closing Date (a list of such orders to be provided to Duramed on or otherwise dispose prior to the Closing) and any future customer orders received by Shire for the Product;
(v) to the extent their transfer is permitted by law, all Regulatory Approvals, including all applications therefor;
(vi) all refunds or credit of Taxes relating to the foregoing attributable to any period following the Closing;
(vii) any guarantees, warranties, indemnities and similar rights in favor of Shire or its Affiliates with respect to any of the foregoing; and
(viii) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by Shire or its Affiliates with respect to the Adderall Business or the ownership, use, function or value of any of its assetsthe foregoing, business whether arising by way of counterclaim or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;otherwise.
(b) Notwithstanding Section 2.1(a) above, the sale or other disposition transfer of (i) inventory the Product NDA shall occur in accordance with the ordinary course provisions of business and (ii) Permitted Investments;Article 3.
(c) non-exclusive licenses and sublicenses For purposes of Patentsclarification, Trademarksthe Purchased Assets shall not include any assets, Copyrights and rights or interests other intellectual property rights granted by than those specifically listed or described in Section 2.1(a) . Without limiting the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct generality of the business of foregoing, the Loan Parties;
(d) Parties agree and acknowledge that the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property Purchased Assets shall not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
include: (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)Excluded Intellectual Property, (ii) any sale and all NDAs or issuance by other product approvals and Technical Data related to Adderall XR or anything else related to the approval, sale, marketing or manufacturing of Adderall XR, (iii) any Restricted Subsidiary Adderall product other than the Product, and (iv) any plant, real property, equipment, accounts receivable, cash and cash equivalents, employees or any refund or credit of Taxes attributable to any period of time prior to the Closing Date (collectively, the “Excluded Assets”). Duramed acknowledges and agrees that Shire may retain a copy of all or part of the Borrower Books and Records that it delivers to Duramed under Section 2.1(a)(ii) for use with products of Shire or its own Qualified Capital Stock to any Loan Party (Affiliates other than Parent) (so long as, except the Product or to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to required under applicable law provided that the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business copy of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower Books and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold Records so retained shall be treated as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Duramed’s confidential information.
Appears in 1 contract
Samples: Product Acquisition and License Agreement (Shire PLC)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and will not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "ASSET SALE"), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for equipment which financial statements have been delivered, calculated on a pro forma basis for such sale has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses are replaced in the ordinary course of business. To ; PROVIDED, HOWEVER, that (i) the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $1,500,000 and (ii) following any such disposition, the Fixed Asset Amount shall be adjusted to the extent required by SECTION 6.11(D);
(c) the Required Lenders (lease or all Lenderssublease of real property not constituting a sale and leaseback, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(e) any Collateral, Asset Sale to the Borrower or any Collateral is sold as permitted by this Section 7.6 Subsidiary Guarantor (other than to a Loan Party PTB Holdings Inc.);
(f) the sale of (i) the Borrower's manufacturing facility located in Brampton, Ontario and (ii) the Borrower's tampon manufacturing equipment line (the "Excluded Property");
(g) as long as no Default or Event of Default is continuing or would result therefrom, any other than Parent)Asset Sale for its Fair Market Value thereof, payable in cash upon such sale; PROVIDED, HOWEVER, that with respect to any such sale pursuant to this CLAUSE (G), (i) the aggregate consideration received for the sale of all assets sold during any Fiscal Year shall not exceed $5,000,000 and (ii)following any such Collateral disposition, the Fixed Asset Amount shall automatically be deemed sold free and clear adjusted to the extent required by SECTION 6.11(D); and
(h) the sale of all or a portion of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower Borrower's equity in order to effect and/or evidence the foregoing, so long as the Borrower Mabesa or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent all or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)portion of the Mabesa Option, in each case concurrently with the exercise of the Mabesa Option.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanSell, subject to Section 7.14lease, Parent) will notsublease, and will not assign, transfer, or otherwise dispose of, or permit any of their Restricted Subsidiaries to, convey, Subsidiary to sell, lease, sublease, assign, transfer transfer, or otherwise dispose of of, any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquiredacquired assets (including, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawwithout limitation, shares of stock and Indebtedness of Subsidiaries, receivables, and leasehold interests), except:
, provided that no Event of Default has occurred or is continuing, and the Lender has not provided written notice to the Borrower that it is prohibiting the transactions otherwise permitted under this Section 6.06, (a) the sale for (1) sales of homes or other disposition land (and, including sales of immaterialreal estate assets in bulk, surplusregardless of value, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted as reasonably determined by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
Borrower)); (d2) the salesales, assignmentleases, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license conveyances or other similar use dispositions, including, without limitation, exchanges or occupancy agreement swaps, of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales estate or other dispositions assets, in each case in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) for development or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% disposition of the aggregate sales price for such Borrower’s or any of its Restricted Subsidiaries’ projects; (3) sales, leases, sale-leasebacks or other dispositions of amenities, model homes and other improvements at the Borrower’s or its Restricted Subsidiaries’ projects in the ordinary course of business (as reasonably determined by the Borrower); (4) any sale or other disposition shall be paid of Cash Equivalents or obsolete or worn out equipment, in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties oreach case, in the case ordinary course of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to business (as reasonably determined by the business of such Restricted Subsidiary;
Borrower); (p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q5) the sale or other disposition for fair market value of assets, including Real Estate pursuant to a Sale and Leaseback Transaction Property, no longer used or useful in an aggregate amount not exceed the greater conduct of business of the Borrower or any of its Restricted Subsidiaries; (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r6) the Borrower making of any Investment or Restricted Payment that is permitted to be made, and its Restricted Subsidiaries may issue is made, in accordance with Section 6.07 or sell any 6.13, as applicable; (7) a transaction involving the sale of Capital Stock inof, or Indebtedness or other securities ofthe disposition of assets in, an Unrestricted SubsidiarySubsidiary (as defined in the Existing Credit Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time); and
and (s8) any other sales or other dispositions that, in the aggregate, do not exceed $20,000,000 in any fiscal year of the Borrower; (b) that any Restricted Subsidiary may sell, lease, assign, or otherwise transfer its assets to the Borrower or any Guarantor, or if such Restricted Subsidiary is not a Guarantor, then to any other Restricted Subsidiary in connection with an Internal Reorganization or otherwise; and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2c) waive that the provisions of this Section 7.6 with respect to 6.06 shall not affect or limit the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Borrower’s obligations under Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)6.03.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, conveydirectly or indirectly, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person assets other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and Inventory (iiincluding containers held for lease) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) individual items of Collateral with a book value of less than $1,000,000 in the aggregate during any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long asfiscal year, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement obsolete or worn out property disposed of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To , (iv) dispositions of assets not otherwise addressed by this Subsection 8.2.5 with an aggregate fair market value not in excess of $1,000,000 in any fiscal year, (v) to the extent permitted by the Required Lenders (Senior Note Indenture, sales of container Inventory held for lease for the purpose of securitization or all like off-balance sheet financing with the prior written consent of Agent and the Lenders, if required under Section 10.2which consent shall not be unreasonably withheld, (vi) waive transfers of Inventory and Equipment from Borrower to a Guarantor, or from one Guarantor to another Guarantor or to Borrower, and (vii) sales of Trailers acquired in Permitted Acquisitions or owned by Borrower or a Guarantor on the provisions of this Section 7.6 date hereof; provided that, with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 clauses (other than to a Loan Party (other than Parent)ii), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents(iii), (iv), (v), and (vii), (a) such dispositions are for fair value, (b) the Administrative Agent aggregate consideration is authorized to take paid in full in cash at the time of disposition and shall take any actions reasonably requested by is either reinvested in the Borrower in order to effect and/or evidence the foregoing, so long as the business of Borrower or applicable Loan Party shall have provided its Subsidiaries (subject to the Administrative Agent a certificate confirming compliance with limitations of this Agreement. Notwithstanding the foregoing ) or anything else used to the contrary repay Revolving Credit Loans in the Loan Documents, the accordance with Section 3.3.3 and (viii) sales of Equipment which Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not Guarantor will lease back under a Loan Party (including any Unrestricted Subsidiary)capital lease permitted under Section 8.2.2(d) or an operating lease permitted under Section 8.2.13.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thana) On the Closing Date, and subject to Section 7.14the terms and conditions of this Agreement, Parent) will notShire will, and will not permit any of their Restricted Subsidiaries cause its Affiliates to, convey, sell, lease, assign, convey and transfer to Duramed, and Duramed will purchase and accept from Shire and its Affiliates, all of Shire’s and its Affiliates’ right, title and interest in and to the following assets (collectively, the “Purchased Assets”):
(i) the Product NDA;
(ii) the Book and Records; provided that any lists included therein may be redacted as necessary to conceal information pertaining to products other than the Product;
(iii) the Technical Data;
(iv) all unfulfilled customer orders for the Product arising in the Territory as of the Closing Date (a list of such orders to be provided to Duramed on or otherwise dispose prior to the Closing) and any future customer orders received by Shire for the Product;
(v) to the extent their transfer is permitted by law, all Regulatory Approvals, including all applications therefor;
(vi) all refunds or credit of Taxes relating to the foregoing attributable to any period following the Closing;
(vii) any guarantees, warranties, indemnities and similar rights in favor of Shire or its Affiliates with respect to any of the foregoing; and
(viii) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by Shire or its Affiliates with respect to the Adderall Business or the ownership, use, function or value of any of its assetsthe foregoing, business whether arising by way of counterclaim or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;otherwise.
(b) Notwithstanding Section 2.1(a) above, the sale or other disposition transfer of (i) inventory the Product NDA shall occur in accordance with the ordinary course provisions of business and (ii) Permitted Investments;Article 3.
(c) non-exclusive licenses and sublicenses For purposes of Patentsclarification, Trademarksthe Purchased Assets shall not include any assets, Copyrights and rights or interests other intellectual property rights granted by than those specifically listed or described in Section 2.1(a). Without limiting the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct generality of the business of foregoing, the Loan Parties;
(d) Parties agree and acknowledge that the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property Purchased Assets shall not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
include: (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)Excluded Intellectual Property, (ii) any sale and all NDAs or issuance by other product approvals and Technical Data related to Adderall XR or anything else related to the approval, sale, marketing or manufacturing of Adderall XR, (iii) any Restricted Subsidiary Adderall product other than the Product, and (iv) any plant, real property, equipment, accounts receivable, cash and cash equivalents, employees or any refund or credit of Taxes attributable to any period of time prior to the Closing Date (collectively, the “Excluded Assets”). Duramed acknowledges and agrees that Shire may retain a copy of all or part of the Borrower Books and Records that it delivers to Duramed under Section 2.1(a)(ii) for use with products of Shire or its own Qualified Capital Stock to any Loan Party (Affiliates other than Parent) (so long as, except the Product or to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to required under applicable law provided that the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business copy of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower Books and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold Records so retained shall be treated as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Duramed’s confidential information.
Appears in 1 contract
Samples: Product Acquisition and License Agreement (Barr Pharmaceuticals Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned 's Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an "ASSET SALE"), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) transfers resulting from any sale taking or condemnation of any property of the Borrower or any of its Subsidiaries (other than their own stock or, as long as no Default or stock equivalentsEvent of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
(c) by as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of equipment that the Borrower reasonably determines is no longer useful in its business, has become obsolete or damaged or is replaced in the ordinary course of business;
(d) as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of the Specified Properties;
(e) as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of assets of any Restricted Subsidiary to any Loan Party Permitted Joint Venture that, both at the time of such sale and at the date hereof, do not constitute, in the aggregate, all or a material part of the assets of such Permitted Joint Venture;
(other than Parentf) as long as no Default or Event of Default is continuing or would result therefrom, the lease or sublease of Real Property not constituting a sale and leaseback, to the extent any resulting Investment constitutes a Permitted Investmentnot otherwise prohibited by this Agreement or the Mortgages;
(g) settlementsas long as no Default or Event of Default is continuing or would result therefrom, write-offsassignments and licenses of intellectual property of the Borrower and its Subsidiaries in the ordinary course of business;
(h) as long as no Default or Event of Default is continuing or would result therefrom, discountdiscounts, sales or other dispositions adjustments, settlements and compromises of Accounts and contract claims in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceedingand in accordance with generally accepted practices in the industry;
(i) Investments made in accordance with Section 7.4any Asset Sale to the Borrower or any Subsidiary Guarantor;
(j) Restricted Payments permitted under Section 7.5;as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; PROVIDED, HOWEVER, that with respect to any such sale pursuant to this CLAUSE (j), the aggregate consideration received for the sale of all assets sold during any Fiscal Year shall not exceed $1,000,000; and
(k) sales and other dispositions any issuance of assets by Voting Stock of the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty Warrants or the Stock Options, and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except subject to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty terms and Security Agreement) conditions set forth therein and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties Warrant Agreements or, in as the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentsbe, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Stock Option Agreement.
Appears in 1 contract
Samples: Credit Agreement (Washington Group International Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Each of Group and the Borrower will not, and will not permit any of their Restricted its respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of of, any of its assetsassets or any interest therein (including the sale or factoring at maturity or collection of any Accounts) to any Person, business or property permit or suffer any other Person to acquire any interest in any of its assets or, in the case of any Restricted SubsidiarySubsidiary of Group, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(fb) any the sale of any property asset or assets (other than their own stock or stock equivalentsincluding, without limitation, a Subsidiary’s Stock, but excluding the Stock of the Borrower) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets Warnaco Entity as a result of a casualty loss or condemnation proceeding;
long as (i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions the purchase price paid to such Warnaco Entity for such asset shall be no less than the Fair Market Value of assets by such asset at the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower)time of such sale, so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not no less than 75% of the aggregate sales purchase price for such sale or other disposition asset shall be paid in cashcash and the remaining amount paid in notes receivable (provided that in the case of an Asset Sale consummated when no Loan or Loans or unreimbursed amounts in respect of drawn Letters of Credit are outstanding (Loan, Loans and Letters of Credit being used in this proviso as defined in each of this Agreement and the U.S. Facility), 50% of the purchase price for such asset may be paid in cash and the remaining amount paid in notes receivable) (which notes receivable shall be in form and substance reasonably satisfactory to the Administrative Agent), (iii) neither the seller of such assets nor any of its Affiliates shall have any subsequent payment obligations in respect of such sale, other than customary and standard indemnity obligations and as set forth in subclause (ii) above, (iv) no Default or Event of Default has occurred and is continuing at the time of such sale or would result from such sale, (v) in the case of a sale of assets by a U.S. Loan Party, Section 8.4(b)(v) of the U.S. Facility shall have been complied with and (vi) if the net cash proceeds received for all assets sold by the Canadian Loan Parties during any calendar year pursuant to this clause (b) shall exceed the U.S. Dollar Equivalent of U.S.$5,000,000 in the aggregate, then (1) the Borrower shall prepay the Loans (first the Swing Loans until paid in full and then the Revolving Loans) promptly upon receipt of such net cash proceeds in the amount of all net cash proceeds received from time to time (including in respect of any note receivable) with respect to the sale that resulted in such excess occurring and all subsequent sales of assets by any Canadian Loan Party pursuant to this clause (b) during such calendar year and (2) with respect to the sale that resulted in such excess occurring and each subsequent sale of assets by any Canadian Loan Party pursuant to this clause (b) during such calendar year which results in net cash proceeds in excess of the U.S. Dollar Equivalent of U.S.$500,000, the Borrower shall deliver to the Administrative Agent, no later than the date of such sale, a Borrowing Base Certificate as of the Business Day immediately preceding the date of such sale executed by a Responsible Officer of Group giving pro forma effect to such sale, which Borrowing Base Certificate shall show that the aggregate principal amount of Revolving Credit Outstandings does not exceed the Maximum Credit at such time(for purposes of this clause (vi), net cash proceeds of an asset sale means proceeds of such asset sale received from time to time (including a payment on a note receivable) in cash or Cash Equivalents net of (x) the reasonable cash costs of sale, (y) taxes paid or payable as a result thereof and (z) any amount required to be paid or prepaid on Indebtedness (other than the Obligations) secured by a perfected Lien on the assets subject to such asset sale);
(lc) Liens permitted under Section 7.2;
(m) transfers of assets from (i) any sale or issuance by the Borrower of its own Qualified Capital Stock U.S. Loan Party to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement)any other U.S. Loan Party, (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a U.S. Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary Warnaco Entity that is not a U.S. Loan Party, useful to provided that the business aggregate Fair Market Value of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate assets sold, leased, transferred or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value otherwise disposed of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of this subclause (xii) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than pursuant to the next proviso of this subclause (ii)) shall not exceed U.S.$20,000,000 in the aggregate plus the Fair Market Value of any equipment and inventory owned on the Closing Date by a U.S. Loan Party in connection with its domestic manufacturing operations that are subsequently transferred to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral DocumentsForeign Subsidiary, and provided further that the U.S. Loan Parties may transfer the Xxxxxx Xxxxx Underwear trademark and/or rights to use such trademark to one or more Warnaco Entities that are not U.S. Loan Parties so long as (A) each such transfer shall be on arm’s-length terms and the price paid to the transferring U.S. Loan Parties shall be no less than the Fair Market Value of such trademark at the time of such transfer, (B) each such transfer is for cash, Cash Equivalents and/or a note (such note to be on arm’s-length terms at a market interest rate and otherwise reasonably acceptable to the Administrative Agent and pledged to the Collateral Agent for the benefit of the Secured Parties), (C) no Default or Event of Default has occurred and is authorized to take continuing at the time of such transfer or would result from such transfer and shall take any actions reasonably requested by (D) the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party transferee of such trademark shall have provided entered into an agreement on terms reasonably satisfactory to the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding pursuant to which such transferee agrees that the foregoing Collateral Agent may dispose of Inventory utilizing such trademark without restriction or anything else royalty payment to the contrary in the Loan Documentstransferee, the Borrower will not, and will not permit (iii) any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary Warnaco Entity that is not a Loan Party to any other Warnaco Entity and (including iv) any Unrestricted SubsidiaryCanadian Loan Party to any other Canadian Loan Party;
(d) the licensing or sublicensing of trademarks and trade names by any Warnaco Entity; provided that (i) if the licensing or sublicensing is by a U.S. Loan Party, if the applicable trademark or trade name has generated sales in excess of U.S.$20,000,000 in the prior fiscal year, such license or sublicense (x) shall not have an initial term in excess of 7 years and (y) shall not have aggregate up-front payments and minimum guaranteed royalties in excess of U.S.$7,500,000 or, together with the aggregate up-front payments and minimum guaranteed royalties for all other such licenses and sublicenses, in an aggregate amount in excess of U.S$25,000,000 and (ii) any such licensing or sublicensing to a Person other than a U.S. Loan Party shall take place on an arm’s-length basis;
(e) the rental by the Warnaco Entities, as lessors or sub-lessors, in the ordinary course of their respective businesses, on an arm’s-length basis, of real property and personal property, in each case under leases (other than Capital Leases);
(f) the sale or disposition of machinery and equipment no longer used or useful in the business of the Warnaco Entities;
(g) any sale of fixed assets not in connection with a Sale and Leaseback Transaction that were purchased in connection with a proposed lease financing transaction within 45 days of such Asset Sale, which assets are subsequently leased back by the U.S. Borrower or one of its Subsidiaries;
(h) any Asset Sale permitted by Section 8.7;
(i) any Asset Sale in connection with a Sale and Leaseback Transaction permitted pursuant to Section 8.16(b); and
(j) the sale of any asset listed on Schedule 8.4.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower Borrowers will not, and will not permit any Subsidiary to, permit sell, assign, farm-out, convey or otherwise transfer any asset, including, without limitation, Property containing proved reserves constituting a portion of the Borrowing Base or to issue or sell any Equity Interests in a Co-Borrower or any of its Restricted Subsidiaries except (i) an issuance or sale of common stock or Preferred Stock of Xxxxxxx, in each case whether as a Preferred Stock Distribution or otherwise and without regard to whether or not there is any Default or Event of Default or (ii) the following sales, assignments, farm-outs, conveyances and/or transfers, provided, no Default or Event of Default exists or will exist after giving effect to such sale, assignment, conveyance, farm-out or transfer:
(a) a transfer of Material IP owned by assets between or among a Loan Party Co-Borrower and its Restricted Subsidiaries;
(b) an issuance or sale of Equity Interests in a Restricted Subsidiary to Parent a Co-Borrower or to another Restricted Subsidiary;
(c) the sale, lease or other disposition of produced Hydrocarbons, equipment, inventory, accounts receivable or other properties or assets in the ordinary course of business, including, without limitation, any abandonment, farm-in, farm-out, lease or sublease of any oil and gas properties or the forfeiture or other disposition of such properties pursuant to standard form operating agreements, in each case in the ordinary course of business in a Subsidiary that is not a Loan Party manner customary in the oil and gas business;
(d) the sale or other disposition of cash or cash equivalents; and
(e) subject to the mandatory prepayment requirements in Section 3.04(c), the sale or other disposition (including Casualty Events) of any Unrestricted Oil and Gas Property or any interest therein or any Restricted Subsidiary owning Oil and Gas Properties; provided that
(1) Borrowers shall provide the Administrative Agent at least ten (10) days prior written notice of any sale, assignment, conveyance or transfer hereunder,
(2) 100% of the consideration received in respect of such sale or other disposition shall be cash,
(3) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Oil and Gas Property, interest therein or the Restricted Subsidiary subject of such sale or other disposition (as reasonably determined by the board of directors of the Borrowers and, if requested by the Administrative Agent, the Borrowers shall deliver a certificate of a Responsible Officer of each Co-Borrower certifying to that effect),
(4) if such sale or other disposition of Oil and Gas Property when combined with any other sales under this Section 9.11(e) occurring between Scheduled Redetermination Dates results in a sale of more than five percent (5%), in the aggregate, of the proved developed Oil and Gas Properties included in the most recently delivered Reserve Report, such sale or disposition shall be subject to the written consent of the Administrative Agent, not to be unreasonably withheld, and the Borrowing Base may be immediately redetermined pursuant to Section 2.07 and the Borrowers shall pay any Borrowing Base Deficiency in accordance with Section 3.04(c), and
(5) if any such sale or other disposition is of a Restricted Subsidiary owning Oil and Gas Properties, such sale or other disposition shall include all the Equity Interests of such Restricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties No Credit Party shall, nor shall it permit any of its Subsidiaries to, sell, convey, or otherwise transfer any of its Property (including, without limitation, any working interest, overriding royalty interest, production payments, net profits interest, royalty interest, or mineral fee interest) other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer so long as no Default exists or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptwould result therefrom:
(ai) the sale of Hydrocarbons or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Liquid Investments in the ordinary course of business;,
(fii) any sale Asset Sales of any property equipment that is (other than their own stock A) obsolete, worn out or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions uneconomic and disposed of in the ordinary course of business, (B) no longer necessary for the business of extension such Person or (C) contemporaneously replaced by equipment of trade credit, including defaulted at least comparable value and use,
(iii) Asset Sales of Property between or past due receivablesamong Credit Parties;
(hiv) disposition Asset Sales of assets as a result Oil and Gas Properties which are not attributable to Proven Reserves and which is not Collateral or which is not otherwise required pursuant to the terms of a casualty loss or condemnation proceedingthis Agreement to be Collateral;
(iv) Investments made in accordance with Section 7.4;
the Asset Sale of Oil and Gas Properties which are attributable to Proven Reserves; provided that, (jA) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets the consideration received by the Borrower Credit Party in respect of such Asset Sale shall be cash, cash equivalents, or shall be attributable to Oil and its Restricted Subsidiaries which are made for Gas Properties classified as Proven Reserves, (B) the consideration received in respect of such Asset Sale shall be equal to or greater than the fair market value of such Oil and Gas Properties, interest therein or Subsidiary subject of such Asset Sale (as reasonably determined by the Borrowerboard of directors or the equivalent governing body of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer of the Borrower certifying to that effect), so long (iC) no Event if any such Asset Sale is of Default under Section 8.1(a)a Subsidiary owning Oil and Gas Properties, 8.1(b), 8.1(h) or 8.1(i) such Asset Sale shall exist or result therefrom, include all the Equity Interests of such Subsidiary; and (iiD) not less than 75if the BB Deduction Amount exceeds 5% of the aggregate sales price for such sale or other disposition most recently redetermined Borrowing Base, then the Borrowing Base shall be paid reduced in cash;
(l) Liens permitted under accordance with Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent2.2(e);
(ovi) trade-ins the Asset Sale of Hedging Arrangements; provided that, (A) 100% of the consideration received in respect of such Asset Sale shall be cash or cash equivalents or other exchanges Hedging Arrangements, (B) the consideration received in respect of tangible assets for other tangible assets of comparable such Asset Sale shall be equal to or greater value useful to than the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 such Hedging Arrangements; and (yC) 28if the BB Deduction Amount exceeds 5% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredredetermined Borrowing Base, calculated on a pro forma basis for such sale or other disposition) during then the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryBorrowing Base shall be reduced in accordance with Section 2.2(e); and
(svii) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course Asset Sales of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 Property (other than Oil and Gas Properties or Hedging Arrangements) not to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take exceed $1,000,000 during any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)fiscal year.
Appears in 1 contract
Sale of Assets. The Loan Parties (other thanNeither Holdings nor the Borrower shall, subject to Section 7.14, Parent) will not, and will not or shall permit any of their Restricted respective Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer lease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of the Borrower or any Restricted Subsidiaryof its Subsidiaries, issue or sell any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Stock or hereafter acquired, to Stock Equivalent (any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawsuch disposition being an “Asset Sale”), exceptexcept for the following:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business its Subsidiaries of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Inventory in the ordinary course of business;
(b) the sale or disposition any Borrower or any of its Subsidiaries of equipment or Inventory that has become obsolete or is replaced in the ordinary course of business;
(c) the lease or sublease of real property by the Borrower or any of its Subsidiaries not constituting a sale and leaseback;
(d) assignments and licenses of intellectual property of the Borrower or any of its Subsidiaries in the ordinary course of business;
(e) any Asset Sale (i) by a Domestic Loan Party to another Domestic Loan Party, (ii) by a Material Loan Party that is not a Domestic Loan Party to another Material Loan Party, (iii) by a Material Loan Party to a Loan Party that is not a Material Loan Party in an aggregate amount the Dollar Equivalent of which shall not exceed $25,000,000 in any twelve month period, and (iv) by a JD Entity that is not a Material Loan Party to any other JD Entity;
(f) any sale sales of any property (accounts receivable and related assets in connection with the sales, transfers and other than their own stock dispositions of Receivables and Related Security to a Securitization Subsidiary for the fair market value thereof, including cash in an amount at least equal to 75% of the book value thereof as determined in accordance with GAAP, it being understood that notes received in exchange for the transfer of Receivables and Related Security will be deemed cash if the Securitization Subsidiary or stock equivalents) other payor is required to repay those notes as soon as practicable from available cash collections less amounts required to be established as reserves pursuant to contractual agreements with entities that are not Affiliates of the Borrower entered into as part of a Securitization Facility and all sales, transfers or other dispositions of Securitization Assets by any Restricted a Securitization Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes under, and pursuant to, a Permitted Investmentrelated Securitization Facility;
(g) settlementsany assignment, write-offs, discount, sales or sale of other dispositions in the ordinary course disposition of business of extension of trade credit, including defaulted or payment intangibles more than 90 days past due receivablesmade in connection with the collection of such delinquent payment intangibles;
(h) disposition the Permitted Divestitures for Fair Market Value; provided, however, that (i) net sales (as reported in the Form 10-K to be filed by the Borrower with the Securities and Exchange Commission for the Fiscal Year ending December 30, 2005) of assets as a result such sold, divested or terminated businesses shall not exceed $800,000,000 in the aggregate during the term of a casualty loss this Agreement and (ii) with respect to any such sale pursuant to this clause (h), 85% of all consideration received for any Permitted Divestiture shall be in cash or condemnation proceeding;Cash Equivalents and all Net Cash Proceeds of such Permitted Divestitures are applied to the Obligations to the extent required by Section 2.9 (Mandatory Prepayments); and
(i) Investments made as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale (not otherwise permitted by this Section 8.4 (Sale of Assets)) for Fair Market Value, payable solely in accordance cash upon such sale; provided, however, that with Section 7.4;
respect to any such sale pursuant to this clause (j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borroweri), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% the Dollar Equivalent of the aggregate sales price consideration received for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of all assets sold (x) during Fiscal Years 2006 and 2007 shall not exceed $20,000,000 and (y) 28% each Fiscal Year thereafter shall not exceed $50,000,000 and (ii) all Net Cash Proceeds of Consolidated EBITDA (for such Asset Sales are applied to the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To Obligations to the extent the Required Lenders required by Section 2.9 (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) Borrower will not, and nor will not it permit any of their Restricted Subsidiaries Subsidiary to, convey, sell, lease, assign, transfer sell or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, Property to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Person, except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) Sales of inventory in the ordinary course of business and consistent with past practices.
(ii) Permitted Investments;Sales of the assets listed on Schedule 1.1.
(ciii) nonAny transfer of an interest in accounts or notes receivable and related assets as part of a Qualified Receivables Transaction.
(iv) Investments to the extent permitted by Section 6.14.
(v) Licenses, cross-exclusive licenses or sublicenses by the Borrower and sublicenses its Subsidiaries of Patentssoftware, Trademarks, Copyrights trademarks and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct course of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to which do not materially interfere with the business of the Borrower or of the Borrower and the Subsidiaries, taken as a whole.
(vi) The Borrower and its Restricted Subsidiaries may sell or no longer commercially practicable to maintain;
(e) a leasediscount, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in each case without recourse and in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses overdue accounts receivable arising in the ordinary course of business. To , but only in connection with the extent the Required Lenders compromise or collection thereof consistent with ordinary business practice (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition and not as part of any Collateral, bulk sale).
(vii) The Borrower or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear Domestic Subsidiary of the Liens created by the Collateral Documents, and the Administrative Agent Borrower that is authorized a Wholly-Owned Subsidiary may transfer or lease Property to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a other Domestic Subsidiary that is a Wholly-Owned Subsidiary.
(viii) Each of the Borrower and its Subsidiaries may (a) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person’s business, (b) unless a Default shall have occurred and be continuing, subject to Section 2.7(b), sell, lease or otherwise dispose of any assets, provided that the aggregate consideration received in respect of all Asset Sales pursuant to this clause (viii) shall not a Loan Party exceed the sum of (i) $15,000,000 in any twelve month period, not including the proceeds of the sale of assets listed on Schedule 1.1 and (c) enter into one or more Sale and Leaseback Transactions, provided that the Attributable Debt arising therefrom shall not exceed $25,000,000 at any Unrestricted Subsidiary)time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Actuant Corp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their its Restricted Subsidiaries to, sell, convey, selltransfer, lease, assign, transfer sublease or otherwise dispose of, any of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any account) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business their respective assets or property or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital StockStock or Stock Equivalent (each, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law“Disposition”), except:
except for the following: (an) the sale or other disposition Disposition of immaterial, surplus, obsolete or worn out any property or other property not necessary for operations;assets in the ordinary course of business consistent with past practices; (o)
(b) the sale or other disposition of (i) the Disposition by Borrower or any of its Restricted Subsidiaries of equipment or inventory that has become obsolete, damaged or condemned or is replaced in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses the sale or discount without recourse of Patentspast due Accounts Receivable or past due notes receivable, Trademarksor the conversion or exchange of such Accounts Receivable into or for notes receivable, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect connection with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer compromise or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into collection thereof in the ordinary course of business;
(fi) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales abandonment or other dispositions Disposition of patents, patent applications, trademarks, trademark applications or other intellectual property that are, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Borrower and its Restricted Subsidiaries taken as a whole and (ii) assignments and licenses, including sublicenses, of intellectual property of Borrower or any of its Restricted Subsidiaries in the ordinary course of business or in connection with a Permitted Joint Venture; (r) subject to any restrictions set forth in Section 8.6(a), any Disposition by Borrower or any of extension its Restricted Subsidiaries to Borrower or any Wholly-Owned Subsidiary of trade creditBorrower other than Dispositions in the ordinary course of business under clause (a) above; provided that in the case of any Disposition from a Loan Party to a Non-Loan Party, the aggregate consideration received in connection with such Disposition shall not exceed $15,000,000; (s)
(i) any Financing Disposition and (ii) the sale or factoring at maturity or collection of any Accounts Receivable, in each case for the Fair Market Value (as of the date on which a legally binding commitment for such Disposition was entered into) thereof; (t) any assignment, sale or other disposition of payment intangibles more than 90 days past due made in connection with the collection of such delinquent payment intangibles; (u) any other Disposition (not otherwise permitted by this Section 8.4) for Fair Market Value (as of the date on which a legally binding commitment for such Disposition was entered into); provided that (i) at least 75% of the consideration received in connection with such Disposition (excluding any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) is in the form of cash or Cash Equivalents with respect to any such Disposition for which the aggregate consideration received exceeds $2,000,000 and (ii) all Net Cash Proceeds of such Dispositions are applied to the Term Loans to the extent required by Section 2.9; (v) the Disposition of any assets, Stock or Stock Equivalents in connection with any Permitted Intercompany Transaction; (w) any Disposition of Stock of a Subsidiary of Holdings (other than Borrower) that becomes a Parent Entity (“New Parent Entity”), including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;a
(i) Investments made the Disposition of any non-core or non-strategic assets acquired in connection with a Permitted Acquisition or similar Investment for Fair Market Value (as of the date on which a legally binding commitment for such Disposition was entered into); provided that, (x) to the extent required by Section 2.09(a), such Net Cash Proceeds from any such sale are reinvested or applied in prepayment of the Loans in accordance with the provisions of Section 7.4;
2.09(a), (jy) Restricted Payments permitted under Section 7.5;
immediately after giving effect thereto, no Event of Default would exist (kas of the date on which a legally binding commitment for such Disposition was entered into) sales and other dispositions of assets by (z) the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower in good faith) of such non-core or non-strategic assets so Disposed (measured at the time the definitive agreement for such Disposition is entered into) shall not exceed 25% of the purchase price paid for all such assets acquired in such Permitted Acquisition or (ii) the Disposition of assets that are necessary or advisable, in the good faith judgment of the Borrower, in order to obtain the approval of any Governmental Authority to consummate or avoid the prohibition or other restrictions on the consummation of any Permitted Acquisition or any Investment permitted by Section 8.3; provided that, (x) to the extent required by Section 2.09(a), so long such Net Cash Proceeds from any such sale are reinvested or applied in prepayment of the Loans in accordance with the provisions of Section 2.09(a) and (iy) immediately after giving effect thereto, no Event of Default under Section 8.1(awould exist (as of the date on which a legally binding commitment for such Disposition was entered into), 8.1(b), 8.1(h; provided that no individual Disposition of assets or property with a Fair Market Value (as of the date on which a legally binding commitment for such Disposition was entered into) of (i) below $500,000 or 8.1(i) shall exist or result therefrom, and (ii) not collectively yielding $2,000,000 or less than 75% of the aggregate sales price for such sale or other disposition in any Fiscal Year, shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by constitute a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (Disposition for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions purposes of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)8.
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, conveyConvey, sell, leaselease (other than a sublease of real property), assign, transfer or otherwise dispose of (including through a transaction of merger or consolidation of any Subsidiary) any of its assetsproperty, business or property orassets (including, in without limitation, other payments and receivables but excluding leasehold interests), whether owned on the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned Closing Date or hereafter thereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale sales or other disposition dispositions of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(b) that Borrower or any Subsidiary of Borrower may sell, lease, transfer, or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to, and any Qualified Subsidiary of Borrower merge with and into, Borrower or a Qualified Subsidiary, and Borrower or any Subsidiary of Borrower may sell or otherwise dispose of, or part with control of any or all of, the Capital Stock of any Subsidiary to a Qualified Subsidiary; provided that (i) Borrower shall not, directly or indirectly, transfer any substantial part of its assets pursuant to this paragraph and (ii) all actions necessary or reasonably requested by the Administrative Agent shall be taken by the appropriate Credit Parties to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Administrative Agent pursuant to the Security Documents;
(c) leases of Fee Properties and other real property owned in fee; provided that in the case of any lease of Mortgaged Property, such lease shall be subject to the provisions of the applicable Mortgage;
(d) any Taking or Destruction affecting any property or assets subject, however, to the proviso set forth in clause (c) of the definition of Net Proceeds;
(e) substantially like-kind exchanges of real property or equipment; provided that only any cash in excess of $1,000,000 received by Borrower or any Qualified Subsidiary of Borrower in connection with such an exchange (net of all costs and expenses incurred in connection with such transaction or with the commencement of operation of real property received in such exchange and net of any other amounts described in clauses (w) through (z) of the definition of Net Proceeds) shall be deemed to be Net Proceeds and shall be applied in accordance with subsection 4.5(c) and, to the extent the real property or equipment subject to such exchange constituted Collateral under the Security Documents, then the property exchanged therefor shall be mortgaged or pledged contemporaneously with such exchange, as the case may be, for the benefit of the Secured Parties in accordance with subsection 7.9;
(f) any the sale or other disposition of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to assets that, in the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementsreasonable judgment of Borrower has become uneconomic, write-offsobsolete or worn out, discount, sales and which is sold or other dispositions disposed of in the ordinary course of business or the trade-in of extension equipment for equipment in better condition or of trade creditbetter quality; provided that, including defaulted to the extent such properties or past due receivablesassets constituted Collateral, the net proceeds thereof shall be reinvested in properties or assets owned (or to be owned) by Borrower or its Qualified Subsidiaries having a fair market value at least equal to the amount of such net proceeds and any property or assets purchased with such net proceeds shall be mortgaged or pledged, as the case may be, to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, in accordance with subsection 7.9;
(g) any sale or disposition of any interest in property or assets subject, however, to the proviso set forth in clause (b) of the definition of Net Proceeds; provided that the aggregate amount of Net Proceeds from such sales or dispositions shall not exceed $20,000,000 from and after the Closing Date;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale any property or assets the aggregate amount of the net proceeds received in respect of which shall not exceed $2,000,000 in any fiscal year;
(i) Subsidiaries may (x) be dissolved in accordance with subsection 8.4 and Leaseback Transaction (y) pay dividends in accordance with subsection 8.11;
(j) Investments permitted by subsection 8.6;
(k) licenses or sublicenses by Borrower or any of its Subsidiaries of software, Intellectual Property and general intangible and leases, licenses or subleases of other property in the ordinary course of business and which do not materially interfere with the business of Borrower or any of its Subsidiaries;
(l) any disposition or dispositions (in an aggregate amount not to exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) 2,000,000 during the term of this Agreement;
(r) the Borrower in connection with a Sale and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted SubsidiaryLeaseback Transaction; and
(sm) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing before or after giving effect thereto, (ii) if and to the extent that Borrower and its Restricted Qualified Subsidiaries may terminate leases, subleases, licenses and sublicenses in receive consideration for the ordinary course of business. To the extent the Required Lenders cable television system or systems (or all Lendersportions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon disposition thereof, such Asset Swap shall be deemed to be a disposition of assets and shall be permitted only if required under Section 10.2) waive the provisions of this Section 7.6 subsections 8.5(g) or (h) and 4.5(c) shall be complied with respect in connection therewith and (iii) the aggregate book value of assets disposed of pursuant to Asset Swaps shall not exceed (x) prior to the conveyancefirst anniversary of the Closing Date, sale10% or (y) thereafter, lease20% of the aggregate book value of the combined consolidated total assets of Borrower and its Qualified Subsidiaries as reflected in the Pro Forma Financial Statements; provided that all sales, assignment or transfers, leases and other disposition dispositions permitted hereby shall be made for fair value and for at least 85% cash consideration in the case of any Collateralsales, or any Collateral is sold as transfers, leases and other dispositions permitted by this Section 7.6 clauses (f) (other than to a Loan Party in the case of any trade-ins), (g), (h) and (l) (including for purposes of this calculation as cash consideration the amount of any liabilities (other than Parent)), such Collateral shall automatically be deemed sold free and clear subordinated liabilities) assumed from Holdings or any of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned its Subsidiaries by a Loan Party to Parent purchaser or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiaryother transferee).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) It will not, and will not permit any of their its Restricted Subsidiaries to, conveyenter into any Divestiture or any other conveyance, sellsale, lease, assignsublease, transfer assignment, transfer, or otherwise dispose other disposition of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law)Property, except:
(a) the sale sales of inventory and cash or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into Investments in the ordinary course of business;
(fb) any sale disposition of any property (other than their own stock used, worn out, obsolete or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions surplus Property in the ordinary course of business of extension of trade credit, including defaulted or past due receivablesbusiness;
(hc) leases of Real Property or personal Property to third parties in the ordinary course of business;
(d) any disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy Borrower or any Requirement of Law in the jurisdiction of incorporation of any other Restricted Subsidiary or of the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(ne) dispositions transfers of assets into a Joint Venture or Unrestricted Subsidiary so long as such Joint Venture or Unrestricted Subsidiary is permitted pursuant to Section 6.04; provided that the fair market value of the assets transferred shall count against the amount of investments permitted by a Loan Party to another Loan Party (other than ParentSection 6.04(g)(i);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qf) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale any Unrestricted Subsidiary or other disposition) during the term of this AgreementJoint Venture;
(rg) the Borrower and its Restricted Subsidiaries may issue sales or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses discounts of overdue accounts receivable in the ordinary course of businessbusiness in connection with the compromise or collection thereof; and
(h) as long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower Parties may sell or otherwise dispose of Property if 100% of the consideration therefor is cash paid to a Borrower Party; provided, that the aggregate cash proceeds (excluding customary fees, expenses, costs and Taxes paid in connection with the consummation of such sale or disposition) received by the Borrower Parties in any twelve month period resulting from all such sales or dispositions shall not exceed $2,000,000. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 6.06 with respect to the conveyance, sale, lease, assignment or other disposition sale of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent))6.06, such Collateral (unless sold to a Borrower Party) shall automatically be deemed sold free and clear of the Liens created by the Collateral Security Documents, and the Administrative Agent is authorized to take and shall take any all actions reasonably requested by the Borrower it deems appropriate in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Genesis Energy Lp)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parenta) will not, and will not permit Make any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer Asset Sale unless:
(i) the Borrower (or otherwise dispose of any of its assets, business or property or, in the case of any such Restricted Subsidiary, any shares as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value thereof; and
(ii) not less than 70% of the consideration received by the Borrower (or such Restricted Subsidiary’s Capital Stock, as the case may be) is in each case whether now owned or hereafter acquiredthe form of cash, to any Person other than Cash Equivalents and Marketable Securities (excluding Marketable Securities of the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable lawBorrower), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;.
(b) the sale or other disposition The amount of (i) inventory in the ordinary course any Debt (other than any Subordinated Debt) of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering that is actually assumed by the transferee in any material respect with the ordinary conduct of the business of the Loan Parties;
such Asset Sale and (dii) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale Fair Market Value of any property or assets (other than their own stock or stock equivalents) by including Capital Stock of any Person that shall be a Restricted Subsidiary to any Loan Party following receipt thereof) received that are used or useful in a Real Estate Business (other than Parentprovided that (except for Designated Excluded Assets) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementsthat the assets disposed of in such Asset Sale were Collateral, write-offs, discount, sales such property or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to under the Guaranty and Security Agreement)Documents substantially simultaneously with such sale, (ii) any sale or issuance by any Restricted Subsidiary with the Lien on such Collateral securing the Loans being of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 same priority with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold Loans as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)the Lien on the assets disposed of), such Collateral shall automatically be deemed sold free and clear to be consideration required by clause (ii) of Section 6.04(a) above for purposes of determining the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested percentage of such consideration received by the Borrower or the Restricted Subsidiaries. Any Marketable Securities received as consideration in order to effect and/or evidence the foregoing, so long connection with an Asset Sale shall be converted into cash or Cash Equivalents within 180 days of receipt of such Marketable Securities.
(c) The Net Proceeds of such Asset Sale shall be used or applied as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned required by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted SubsidiarySection 2.07(d).
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will Borrower shall not, and will shall not permit any of their Restricted its Subsidiaries to, wind up, liquidate or dissolve its affairs, or sell, convey, selltransfer, lease, assign, transfer lease (including in a sale and leaseback transaction) or otherwise dispose of, all or any part of their respective assets or any interest therein (including the sale or factoring at maturity or collection of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of its assets, business or property their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital StockStock or Stock Equivalent (any such disposition being an “Asset Sale”), in each case whether now owned domestic or hereafter acquiredforeign, to any Person other than except for the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), exceptfollowing:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(qb) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale equipment that has become obsolete or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses is replaced in the ordinary course of business. To ; provided, however, that, other than in respect of the sale of the Pocatello L/C AGREEMENT FMC CORPORATION Equipment, the aggregate Fair Market Value of all such equipment disposed of in any Fiscal Year shall not exceed $5,000,000; and provided further, however, that the proceeds from any sale in respect of the Pocatello Equipment shall be used solely to fund obligations in respect of required Remedial Action;
(c) the lease or sublease of real property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the Required Lenders Borrower and its Subsidiaries in the ordinary course of business;
(e) any Like Kind Exchange;
(f) any transfer of assets by the Borrower or all Lendersany of its Subsidiaries as consideration for an Investment permitted by Section 8.3;
(g) any Asset Sale to the Borrower or any Guarantor (other than any Principal Property (as defined in the indentures governing the Existing Public Debt)); and
(h) as long as no Default or Event of Default is continuing or would result therefrom, if required under Section 10.2) waive the provisions of this Section 7.6 any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by such Asset Sale pursuant to this Section 7.6 clause (other than to a Loan Party (other than Parent)h), all Net Cash Proceeds of such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral DocumentsAsset Sale are applied as set forth in, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documentsextent required by, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party Section 2.3 (including any Unrestricted SubsidiaryMandatory Cash Collateralization/Prepayments).
Appears in 1 contract
Sale of Assets. The Loan Parties Itself, or allow any of its Subsidiaries to sell, lease, assign, transfer or otherwise dispose of any assets of the Company and its Subsidiaries (other thanthan obsolete or worn out property), subject to Section 7.14whether now owned or hereafter acquired, Parent) will notother than in the ordinary course of business as presently conducted and at fair market value (it being expressly agreed and understood that the sale or other disposition of Mortgage Loans with or without servicing released and the sale or other disposition of servicing rights are in the ordinary course of business); provided, and will not permit however, that in no event shall the Company or any of their Restricted its Subsidiaries toenter into any sale and leaseback transaction involving any of its assets without the prior written consent of the Majority Lenders; provided further, convey, that the Company may sell, lease, assign, transfer or otherwise dispose of any of its assetsassets to a Subsidiary of the Company (which, business for the purpose of this proviso shall include any limited partnership the general and limited partners of which are Subsidiaries of the Company) so long as: (1) all classes of stock of, or property orpartnership interests in, in such Subsidiary are owned, directly or indirectly, by the case of any Restricted SubsidiaryCompany, any shares of and such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor Subsidiary incurs no obligations for third party indebtedness (other than ParentIndebtedness secured by Liens permitted by Paragraph 10(a) (above and obligations to employees and vendors as are necessary or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory desirable in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary normal conduct of the business of the Loan Parties;
servicing 1-4 unit single family mortgage loans and in managing an office building owned by such Subsidiary), (d2) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of such unpaid obligations as are described in subparagraph (1) above (excluding Indebtedness secured by Liens permitted by Paragraph 10(a) above and payroll and benefits obligations to employees) shall not exceed at any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into time $50,000,000.00 in the ordinary course of business;
aggregate, and (f3) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets if as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions such transfer of assets such Subsidiary becomes a Subsidiary Guarantor, such Subsidiary executes the documents, instruments and agreements required pursuant to Paragraph 6(a)(2) above; and, provided further, that the Company and its Subsidiaries may sell, lease, assign, transfer or otherwise dispose of any Mortgage Loans and Mortgage-Backed Securities to Affiliates provided that the net cash proceeds of such transactions actually received by the Borrower Company immediately upon the consummation thereof (and its Restricted Subsidiaries which are made for fair market value (after giving effect to any requirement that the Company deposit funds as reasonably determined by the Borrower)collateral security or other form of credit support with respect to such transaction, so long (iwhether from such net cash proceeds or out of other funds) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) is not less than 75% one hundred percent (100%) of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for subject assets or, if less, that the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses Parent concurrently contributes equity in the ordinary course form of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect cash to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary Company in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer full amount of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)such deficiency.”
Appears in 1 contract
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, conveyConvey, sell, lease, assign, transfer or otherwise dispose of any of its assetsproperty, business or property assets (including leasehold interests), whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s 's Capital Stock, in each case whether now owned or hereafter acquired, Stock to any Person other than the Borrower Parent or a Guarantor (other than any wholly owned Subsidiary of Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterialinventory, or of surplus, obsolete or worn out property or other property not necessary for operationsassets, whether now owned or hereafter acquired, in the ordinary course of business;
(b) the sale or other disposition of any other property or assets in the ordinary course of business (iit being understood that this shall not include the sale or other disposition of all or substantially all of any business unit);
(c) the sale or other disposition of any property or assets (other than assets described in clauses (a) and (b) above), provided that the aggregate market value of all assets so sold or disposed of in any period of twelve consecutive months shall not exceed $5,000,000;
(d) the sale or discount without recourse of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable into or for notes receivable in connection with the compromise or collection thereof, provided that, in the case of any Foreign Subsidiary, any such sale or discount may be with recourse if such sale or discount is consistent with customary practice in such Foreign Subsidiary's country of business;
(e) the sale or other disposition of any assets or property by Parent or any of its Subsidiaries to Parent, either Borrower or any wholly owned Subsidiary thereof (provided that no Loan Party shall sell or otherwise dispose of any Collateral (other than inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patentsand, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower extent permitted by Sections 6.03, 6.06 and its Restricted Subsidiaries or no longer commercially practicable 6.08, cash and Cash Equivalents) pursuant to maintain;
this clause (e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary);
(pf) the Borrower and its Restricted sale of the Capital Stock or all or substantially all of the assets of the Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its termsset forth on Schedule 6.05(f);
(qg) as permitted by Section 6.04(b), (c) or (d);
(h) the abandonment, sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been deliveredpatents, calculated on a pro forma basis for such sale trademarks or other disposition) during intellectual property that are, in the term reasonable judgment of this AgreementParent or either Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Parent, the Borrowers and the Subsidiaries thereof taken as a whole;
(ri) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment sale or other disposition of any Collateral, the property of Parent or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoingits Subsidiaries, so long as the Borrower Net Proceeds of any such sale or applicable Loan Party shall have other disposition do not exceed $10,000,000 in the aggregate after the Closing Date, provided that an amount equal to 100% of the Administrative Agent a certificate confirming Net Proceeds of such sale or other disposition less the Reinvested Amount is applied in accordance with Section 2.13(b); and
(j) any issuance, sale or other disposition of preferred stock (or equivalent equity interest) of any Subsidiary constituting Indebtedness created, incurred, assumed or existing in compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (Jafra Cosmetics International Sa De Cv)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
(f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock to any Loan Party (other than Parent) (so long as, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit sell, assign, farm-out, convey or otherwise transfer any property except for (a) the sale of Hydrocarbons and inventory in the ordinary course of business; (b) farmouts of undeveloped acreage and assignments in connection with such farmouts, provided that for any such acreage that is Mortgaged Property with a fair market value in excess of $10,000,000, such farmout or assignment shall subject to the prior written approval of the Administrative Agent in its reasonable discretion; (c) the sale or transfer of Material IP owned equipment that is no longer necessary for the business of the Borrower or such Subsidiary or is replaced by equipment of at least comparable value and use; (d) the sale, transfer or other disposition of Capital Stock in Subsidiaries to the Borrower or another Subsidiary; (e) provided that no Event of Default has occurred and is continuing, the sale or licensing of seismic data; (f) provided that no Event of Default has occurred and is continuing, the disposition of uneconomic xxxxx and leases by auction, for salvage or assumption of plugging liabilities; (g) the release of expired leases and (h) provided that no Event of Default has occurred and is continuing, the sale or other disposition (including casualty events) of any Oil and Gas Property or any interest therein or any Subsidiary owning Oil and Gas Properties; provided that, with respect to the sale or other disposition of Oil and Gas Properties (or interests therein) or any Subsidiary owning Oil and Gas Properties pursuant to this clause (h), (i) 100% of the consideration received in respect of such sale or other disposition shall be cash, (ii) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Oil and Gas Properties, interest therein or Subsidiary subject of such sale or other disposition, taken as a whole on a per transaction basis, as reasonably determined by a Loan Party Responsible Officer of the Borrower (or, with respect to Parent any Oil and Gas Properties valued in excess of $750,000 of the NYMEX Value set forth the most recently delivered Reserve Report for such sale or other disposition, such consideration shall be equal to or greater than the Disposition Value) and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer of the Borrower certifying to that effect, (iii) if such sale or other disposition of any Oil and Gas Property (including farmouts under clause (b) above) or Subsidiary owning Oil and Gas Properties between the Closing Date and March 30, 2012 or during any twelve-month period commencing on March 31st of any year thereafter has a NYMEX Value set forth the most recently delivered Reserve Report in excess of $10,000,000, individually or in the aggregate, then written consent of the Administrative Agent shall be required prior to such sale or disposition, and (iv) if any such sale or other disposition is of a Subsidiary that is not a Loan Party (including any Unrestricted owning Oil and Gas Properties, such sale or other disposition shall include all the Capital Stock of such Subsidiary).
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Ram Energy Resources Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries toto (i) in the case of the Loan Parties, convey, sell, lease, assign, transfer or otherwise dispose of, any of the assets or property of any of its assetsLoan Party, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (x) to a Wholly Owned Subsidiary that is a Debtor or, in the case of a Loan Party that is not a Debtor, to another Loan Party that is not a Debtor or (y) to a Subsidiary that is not a Loan Party, so long as such disposition is (A) in the ordinary course of business, (B) for fair market value and (C) to the extent assets disposed constitute Collateral at such time of disposition, the consideration received for such assets shall constitute Collateral, (ii) in the case of any Subsidiary that is not a Loan Party, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets or property, whether now owned or hereafter acquired, to any Person other than, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (1) to any other Subsidiary that is not a Loan Party or (2) to any Loan Party, so long as such disposition is (A) in the ordinary course of business, (B) for fair market value and (C) to the extent the consideration paid by a Loan Party constitutes Collateral, the assets received by such Loan Party shall constitute Collateral, (iii) in the case of any Subsidiary, issue or sell any shares or quotas of such Subsidiary’s common stock to any Person other than the Borrower or a Guarantor any of the Borrower’s Subsidiaries (other provided that, prior to or concurrently therewith, the applicable Loan Party or Subsidiary has taken all steps necessary or reasonably required to ensure that any pledge of such common stock granted to the Administrative Agent shall remain in effect upon giving effect thereto with the same or greater priority than Parentimmediately before such issuance or sale) (or to qualify directors if required by applicable law), except:
in each case of clauses (i) through (iii), other than (a) Aircraft Substitutions to the sale or other disposition of immaterialextent permitted under Section 5.12, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
Asset Sales, (c) non-exclusive licenses sales, leases and sublicenses charters of Patentsinventory, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license equipment or other similar use or occupancy agreement of real property not constituting Indebtedness entered into assets in the ordinary course of business;
, (fd) sales, dispositions and other transactions permitted pursuant to Sections 7.3, 7.4 and 7.5 above and (e) other sales, dispositions and other transactions with the consent of the Required Lenders. Notwithstanding the foregoing, the Specified Aircraft SPVs shall not sell or otherwise transfer any sale of Specified Aircraft, or assign any property (other than their own stock or stock equivalents) by any Restricted Subsidiary Specified Aircraft Leases, to any Loan Party (other than Parent) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlements, write-offs, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made in accordance with Section 7.4;
(j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions of assets by the Borrower and its Restricted Subsidiaries which are made for fair market value (as reasonably determined by the Borrower), so long (i) no Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% of the aggregate sales price for such sale or other disposition shall be paid in cash;
(l) Liens permitted under Section 7.2;
(m) (i) any sale or issuance by the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement), (ii) any sale or issuance by any Restricted Subsidiary of the Borrower or any of its own Qualified Capital Stock Subsidiaries or to any Loan Party (other than Parent) (so long asPerson, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary)U.K. SAR Contract.
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Samples: Superpriority Secured Debtor in Possession Credit Agreement (Bristow Group Inc)
Sale of Assets. The Loan Parties (other than, subject to Section 7.14, Parent) will not, and will not permit any of their Restricted Subsidiaries to, convey, sellSell, lease, assign, transfer or otherwise dispose of any of its their respective properties and assets, business whether or property ornot pursuant to an order of a federal agency or commission, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Guarantor (other than Parent) (or to qualify directors if required by applicable law), except:
(a) except for the sale or other disposition of immaterial, surplus, obsolete or worn out property or other property not necessary for operations;
(b) the sale or other disposition capital assets disposed of (i) inventory in the ordinary course of business and (ii) Permitted Investments;
(c) non-exclusive licenses and sublicenses of Patents, Trademarks, Copyrights and other intellectual property rights granted by the Borrower or any Restricted Subsidiary not interfering in any material respect with the ordinary conduct of the business of the Loan Parties;
(d) the sale, assignment, transfer or lapse or abandonment of any registrations or applications for registration of any Patents, Trademarks, Copyrights and other intellectual property rights that are immaterial to the business of the Borrower and its Restricted Subsidiaries or no longer commercially practicable to maintain;
(e) a lease, sublease, license or other similar use or occupancy agreement of real property not constituting Indebtedness entered into in the ordinary course of business;
. Notwithstanding the foregoing, the Company shall be permitted, (f) any sale of any property (other than their own stock or stock equivalents) by any Restricted Subsidiary to any Loan Party (other than Parenta) to the extent any resulting Investment constitutes a Permitted Investment;
(g) settlementssell, write-offsfor cash, discount, sales or other dispositions in the ordinary course of business of extension of trade credit, including defaulted or past due receivables;
(h) disposition of assets as a result of a casualty loss or condemnation proceeding;
(i) Investments made the assets of the Xxxxxx Golf Club and (ii) the assets of the Golf Facility located in accordance Utica, New York (collectively, the "Relevant Facilities"); provided in each case of clauses (i) and (ii) (x) no Event of Default or event which upon notice, lapse of time or both would constitute an Event of Default shall have occurred and be continuing or would occur after giving effect to sale, and (y) all Indebtedness of the Company with Section 7.4;
respect to a Relevant Facility (j) Restricted Payments permitted under Section 7.5;
(k) sales and other dispositions including without limitation, Indebtedness secured by a lien or mortgage on the assets of assets the Relevant Facility shall either be repaid in full or assumed by the Borrower respective purchasers thereof, in each case, on or prior to the closing date of such sale; and its Restricted Subsidiaries which (b) to sell the stock or assets of a Subsidiary without the prior written consent of the Bank provided that each of the following conditions are made for fair market value (as reasonably determined by the Borrower), so long met: (i) no Event of Default under Section 8.1(a)or event which upon notice, 8.1(b)lapse of time or both would constitute an Event of Default shall have occurred and be continuing, 8.1(h) or 8.1(i) shall exist or result therefrom, and (ii) not less than 75% in the event of the aggregate sales price for sale of the assets of such Subsidiary, all Indebtedness of such Subsidiary shall either be repaid in full or assumed by the respective purchasers thereof, in each case, on or prior to the closing date of such sale except Indebtedness owing to the Company or other disposition any Subsidiary of the Company which shall be paid in cash;
full on or prior to the closing date of such sale, (liii) Liens permitted under any guaranties executed by the Company or any Subsidiary of the Company with respect to Indebtedness of the Subsidiary to be sold shall be terminated on or prior to the closing date of such sale, and (iv) the aggregate assets of such Subsidiary do not represent greater than 10% of the Consolidated assets of the Company and its Subsidiaries as of the most recent fiscal quarter then ended, (v) the aggregate Net Income of such Subsidiary does not represent greater than 10% of the Consolidated Net Income of the Company and its Subsidiaries as measured over the preceding 12 month period, (vi) no Event of Default or event which, upon notice or lapse of time or both, would constitute an Event of Default shall have occurred and be continuing or shall occur after giving effect to the proposed sale (vii) no more than four (4) such sale transactions shall have occurred during the prior twelve (12) month period, (viii) the proceeds of the sale are applied to prepayment of the Loans in accordance with Section 7.2;
3.10(b), (mix) the aggregate assets of all Subsidiaries sold during any consecutive twelve month period (after giving effect to the proposed sale) do not represent greater than ten percent (10%) of the Consolidated assets of the Company and its Subsidiaries as reflected on the then most recent audited consolidated financial statements of the Company and its Subsidiaries, (x) the aggregate Consolidated Net Income of all Subsidiaries sold during any consecutive twelve month period (after giving effect to the proposed sale) does not represent greater than ten percent (10%) of the Consolidated Net Income of the Company and its Subsidiaries as reflected on the then most recent audited consolidated financial statements of the Company and its Subsidiaries, and (xi) in the event of the sale of assets of the Subsidiary, the purchaser assumes the liabilities of the Subsidiary, other than liabilities arising out of tort or violation of applicable law, or breach of any agreement or instrument to which such Subsidiary is a party prior to the closing date of such sale. In the event the Purchaser of the assets or stock of any Subsidiary in accordance with this Section 7.04 delivers to the seller promissory notes or securities in consideration or partial consideration of the purchase price for such sale, on or prior to the Closing Date the Company or the Subsidiary, as the case may be, shall deliver to the Bank all such promissory notes and/or securities to be held by the Bank as collateral security for the Obligations or Guaranty Obligations (as that term is defined in the Guarantor Pledge Agreement) pursuant to the Bank's form of pledge agreement, together with a copy of such pledge agreement duly executed by the pledgor of such notes or securities. On or prior to the closing of the sale of a Subsidiary complying with the terms of this Section 7.04, the Bank shall deliver to the Company (i) any sale the certificates evidencing the stock or issuance by other equity interests of such Subsidiary delivered to the Borrower of its own Qualified Capital Stock to Parent (so long as such Capital Stock is pledged as Collateral Bank pursuant to the Guaranty and Security Pledge Agreement), (ii) any sale or issuance the stock powers received by any Restricted Subsidiary of the Borrower of its own Qualified Capital Stock Bank with respect to any Loan Party (other than Parent) (so long assuch certificates, except to the extent constituting Excluded Property, such Capital Stock is pledged as Collateral pursuant to the Guaranty and Security Agreement) and (iii) to a letter terminating the extent necessary to satisfy any Requirement obligations of Law in such Subsidiary under the jurisdiction of incorporation of any Restricted Subsidiary or the Borrower, any sale or issuance Guaranty executed by such Person of its own Qualified Capital Stock constituting directors’ qualifying shares or nominal holdings;
(n) dispositions by a Loan Party to another Loan Party (other than Parent);
(o) trade-ins or other exchanges of tangible assets for other tangible assets of comparable or greater value useful to the business of the Loan Parties or, in the case of any such trade-ins or exchanges of assets of any Restricted Subsidiary that is not a Loan Party, useful to the business of such Restricted Subsidiary;
(p) the Borrower and its Restricted Subsidiaries may terminate or unwind any Hedging Transaction in accordance with its terms;
(q) the sale or other disposition for fair market value of Real Estate pursuant to a Sale and Leaseback Transaction in an aggregate amount not exceed the greater of (x) $20,000,000 and (y) 28% of Consolidated EBITDA (for the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered, calculated on a pro forma basis for such sale or other disposition) during the term of this Agreement;
(r) the Borrower and its Restricted Subsidiaries may issue or sell any Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(s) the Borrower and its Restricted Subsidiaries may terminate leases, subleases, licenses and sublicenses in the ordinary course of business. To the extent the Required Lenders (or all Lenders, if required under Section 10.2) waive the provisions of this Section 7.6 with respect to the conveyance, sale, lease, assignment or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 7.6 (other than to a Loan Party (other than Parent)), such Collateral shall automatically be deemed sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent is authorized to take and shall take any actions reasonably requested by the Borrower in order to effect and/or evidence the foregoing, so long as the Borrower or applicable Loan Party shall have provided the Administrative Agent a certificate confirming compliance with this Agreement. Notwithstanding the foregoing or anything else to the contrary in the Loan Documents, the Borrower will not, and will not permit any Subsidiary to, permit any transfer of Material IP owned by a Loan Party to Parent or a Subsidiary that is not a Loan Party (including any Unrestricted Subsidiary).
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