Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except (i) sales in the ordinary course of its business, (ii) dispositions of assets required to be sold to comply with Applicable Laws, (iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (iv) sales, leases, transfers or dispositions of assets to any Person that is not a wholly-owned Subsidiary of the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries, whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entity.
Appears in 8 contracts
Samples: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Sales, Etc. of Assets. SellThe Loan Parties will not, leaseand will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of, or cause or permit of any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of, any its assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) the sales of inventory in the ordinary course of its business, ;
(ii) dispositions the sale or other disposition for fair market value of assets required to be sold to comply with Applicable Lawsobsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business;
(iii) dispositions the sale, transfer or other disposition of short-term, readily marketable investments purchased for cash management purposes with funds not representing and Cash Equivalents in the proceeds ordinary course of other asset sales, business;
(iv) sales, leasestransfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Borrower or any Subsidiary;
(v) sales, transfers or other dispositions constituting Liens permitted by Section 8.9;
(vi) dispositions constituting Permitted Investments;
(vii) non-exclusive licenses of assets to any Person that is not a wholly-owned Subsidiary of the Borrower that intellectual Property in the aggregate during ordinary course of business and not interfering in any 12-month period do not exceed 10% of material respect with the Consolidated Assets business of the Borrower and its Subsidiaries;
(viii) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, whether in the reasonable good faith judgment of the Borrower Agent, no longer economically practicable to maintain or useful in the conduct of the business of the Borrowers and their Subsidiaries;
(ix) the exclusive licensing by any Loan Party to one transaction or a series more Foreign Subsidiaries on an arm’s length basis of transactionsthe right to use Intellectual Property solely in jurisdictions outside of the United States and its territories, provided that pursuant to any such Intercompany License Agreement;
(x) any transfer of inventory between or among the Loan Parties and any other transfer of property or assets (other than Receivables) between or among the Loan Parties, in each case, in the ordinary course of business;
(xi) sales, leases, transfers or other dispositions will be disregarded of property to the extent that (A) such property is exchanged for purposes credit against the purchase price of such 10% limitation similar replacement property or (and, for B) the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or dispositionother disposition are promptly applied to the purchase price of such replacement property; and
(xii) sales, as applicable, are (A) used to retire Debt transfers or other dispositions of the Borrower and its Subsidiaries accounts receivable (other than Debt that is subordinated to Eligible Receivables financed under this Agreement) in connection with the Debt hereunder) collection or (B) invested in assets in similar or related lines of business (including geographic extensions compromise thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entity.
Appears in 3 contracts
Samples: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Sales, Etc. of Assets. SellThe Loan Parties will not, leaseand will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of, or cause or permit of any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of, any its assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) the sales of inventory in the ordinary course of its business, ;
(ii) dispositions the sale or other disposition for fair market value of assets required to be sold to comply with Applicable Lawsobsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business;
(iii) dispositions the sale, transfer or other disposition of short-term, readily marketable investments purchased for cash management purposes with funds not representing and Cash Equivalents in the proceeds ordinary course of other asset sales, business;
(iv) sales, leasestransfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Borrower or any Subsidiary;
(v) sales, transfers or other dispositions constituting Liens permitted by Section 8.09;
(vi) dispositions constituting Permitted Investments or dispositions permitted by Section 8.03;
(vii) non-exclusive licenses of assets to any Person that is not a wholly-owned Subsidiary of the Borrower that intellectual Property in the aggregate during ordinary course of business and not interfering in any 12-month period do not exceed 10% of material respect with the Consolidated Assets business of the Borrower and its Subsidiaries;
(viii) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, whether in the reasonable good faith judgment of the Borrower Agent, no longer economically practicable to maintain or useful in the conduct of the business of the Borrowers and their Subsidiaries;
(ix) the exclusive licensing by any Loan Party to one transaction or a series more Foreign Subsidiaries on an arm’s length basis of transactionsthe right to use Intellectual Property solely in jurisdictions outside of the United States and its territories, provided pursuant to any Intercompany License Agreement;
(a) any transfer of inventory, property or assets between or among the Loan Parties, (b) any transfer of inventory, property or assets between or among the Subsidiaries of the Borrowers that are not Loan Parties, and (c) any such transfer of inventory, property or assets from Subsidiaries of the Borrowers that are not Loan Parties to Loan Parties, in the case of this clause (c), in the ordinary course of business;
(xi) sales, leases, transfers or other dispositions will be disregarded of property to the extent that (A) such property is exchanged for purposes credit against the purchase price of such 10% limitation similar replacement property or (and, for B) the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, other disposition are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated promptly applied to the Debt hereunder) or purchase price of such replacement property;
(B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (vxii) sales, leasestransfers or other dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof; and
(xiii) any other sales, transfers and or other dispositions made in an aggregate principal amount not to the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to exceed $10,000,000 in any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityfiscal year.
Appears in 3 contracts
Samples: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any of its Subsidiaries to sell (including sales and issuances of Capital Stock of any Subsidiary (other than sales and issuances that do not decrease the percentage ownership of the Borrower to selland its Subsidiaries in each class of Capital Stock of such Subsidiary)), lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except (iprovided that the issuance and sale of stock by the Borrower shall not be subject to this Section 7.5):
(a) sales the Borrower and its Subsidiaries may sell inventory in the ordinary course of business;
(A) the Borrower may sell, lease, transfer or otherwise dispose of any of its business, (ii) dispositions of assets required to be sold to comply with Applicable Laws, (iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (iv) sales, leases, transfers property or dispositions of assets to any Person that of the Subsidiaries, and (B) any of the Subsidiaries may sell, lease, transfer or otherwise dispose of any of its property or assets to the Borrower or any of the other Subsidiaries; provided that, in each case (other than in connection with Intercompany Receivables), (x) if the transferor in such transaction is not a wholly-owned Domestic Subsidiary and the transferee in such transaction is a Domestic Subsidiary, on a pro forma basis, the Borrower and its Subsidiaries would be in compliance with Section 7.12 and Section 7.16 and (y) if the transferee in such transaction is a Foreign Subsidiary, such transaction is permitted by Section 7.6;
(c) any Subsidiary of the Borrower that is no longer actively engaged in any business or activities and does not have property and assets with an aggregate book value in excess of $1,000,000 may be wound up, liquidated or dissolved so long as such winding up, liquidation or dissolution is determined in good faith by management of the Borrower to be in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets best interests of the Borrower and its Subsidiaries;
(d) the Borrower and its Subsidiaries may sell, whether lease, transfer or otherwise dispose of any obsolete, damaged or worn out equipment thereof or any other equipment that is otherwise no longer useful in one transaction the conduct of their businesses;
(e) the Borrower and its Subsidiaries may lease or a series sublease Real Property to the extent required for their respective businesses and operations in the ordinary course so long as such lease or sublease is not otherwise prohibited under the terms of transactionsthe Loan Documents;
(f) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of property and assets not otherwise permitted to be sold, leased, transferred or disposed of pursuant to this Section 7.5 so long as the aggregate book value of all of the property and assets of the Borrower and its Subsidiaries sold, leased, transferred or otherwise disposed of pursuant to this clause (f) does not exceed $500,000,000 in the aggregate since the Closing Date; provided that that:
(A) the gross proceeds received from any such salessale, leaseslease, transfers transfer or dispositions will other disposition shall be disregarded for purposes at least equal to the fair market value of such 10% limitation (andthe property and assets so sold, for leased, transferred or otherwise disposed of, determined at the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months time of such sale, lease, transfer or other disposition;
(B) at least 75% of the value of the aggregate consideration received from any such sale, lease, transfer or other disposition shall be in cash; provided that (i) up to one-third of such 75% may consist of notes or other obligations received by the Borrower or such Subsidiary that are due and payable or otherwise converted by the Borrower or such Subsidiary into cash within 365 days of receipt, which cash (to the extent received) shall constitute Net Cash Proceeds attributable to the original transaction; (ii) any unsubordinated Debt of the Borrower or any of its Subsidiaries (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet) that is assumed by the transferee of any such assets shall constitute cash for purposes of this Section 7.5(f), so long as the Borrower and all of its Subsidiaries are fully and unconditionally released therefrom; and (iii) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries, having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (B) after the Closing Date not to exceed $100,000,000 at the time of receipt of such Designated Non-Cash Consideration shall be deemed to be cash for purposes of this Section 7.5(f) (it being understood that the fair market value of each item of Designated Non-Cash Consideration is measured at the time of receipt without giving effect to subsequent changes in value); provided that if such Designated Non-Cash Consideration is sold for, or otherwise converted into, cash, such cash shall constitute Net Cash Proceeds attributable to the original Transaction;
(C) immediately before and immediately after giving pro forma effect to any such sale, lease, transfer or other disposition, as applicableno Default shall have occurred and be continuing;
(D) with respect to any disposition under this subsection that exceeds $50,000,000, are within five Business Days prior to such disposition, and with respect to any other disposition under this subsection, within 15 Business Days after such disposition, the Borrower shall deliver to the Administrative Agent, on behalf of the Lenders, a certificate identifying the property disposed of and stating (Aa) used that immediately before and after giving effect thereto, no Default existed or will exist, (b) that the consideration received or to retire Debt be received by the Borrower or such Subsidiary for such property has been determined by the Borrower or the applicable Subsidiary to be not less than the fair market value of such property, (c) the total expected consideration to be paid in respect of such disposition and (d) the expected Net Cash Proceeds resulting from such disposition; and
(E) if and to the extent that the Net Cash Proceeds of any transaction effected pursuant to this Section 7.5(f) shall not have been reinvested (pursuant to a Reinvestment Notice), such Net Cash Proceeds shall be applied to prepay Loans to the extent, and in accordance with, Section 2.11;
(g) the Borrower and its Subsidiaries may exchange assets and properties with another Person; provided that:
(other than Debt that is subordinated A) the assets or properties received by the Borrower or its Subsidiaries shall be used in a business permitted by Section 7.3 as conducted immediately prior to the Debt hereunder) such transaction, or in an incidental or related business;
(B) invested the total consideration received by the Borrower or such Subsidiary for such assets or property shall have been determined by the Borrower or such Subsidiary to be not less than the fair market value of the assets or property exchanged;
(C) immediately before and immediately after giving pro forma effect to any such exchange, no Default shall have occurred and be continuing;
(D) any cash received by the Borrower or any such Subsidiary in connection with such exchange shall be treated as Net Cash Proceeds subject to Section 2.11 and any cash paid by the Borrower or any Subsidiary in connection with such exchange shall be treated as an acquisition expenditure under Section 7.6(e);
(E) with respect to any exchange under this subsection that involves assets and/or property with a value in similar excess of $50,000,000, within five Business Days prior to such exchange, and with respect to any other exchange under this Section 7.5(g), within fifteen Business Days after such exchange, the Borrower shall deliver to the Administrative Agent, on behalf of the Lenders, a certificate identifying the assets or related lines property disposed of business and acquired in such exchange, and stating (including geographic extensions thereofa) that immediately before and after giving effect thereto, no Default existed or will exist, (b) that the total consideration received by or expected to be received by the Borrower or such Subsidiary for such assets or property has been determined by the Borrower or such Subsidiary to be not less than the fair market value of the assets or property exchanged, and (c) the amount, if any, of the expected cash to be paid or Net Cash Proceeds to be received in connection with such exchange;
(F) if Collateral is exchanged the assets and properties received in exchange shall constitute Collateral and Sections 6.12 and 6.13 shall be complied with;
(h) the Borrower and its Subsidiaries as may enter into Sale and Leaseback Transactions (i) with respect to the Denver Headquarters and (ii) with respect to any other property, provided that the aggregate value of property sold or transferred under this subclause (ii) shall not exceed $150,000,000 since the Closing Date; provided that the Net Cash Proceeds from such transaction are applied in accordance with Section 2.11(b);
(i) the Borrower and its Subsidiaries may purchase, sell or otherwise transfer (including by capital contribution) Receivables Assets pursuant to Permitted Receivables Financings;
(j) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of assets or property (i) in anticipation of any Investment pursuant to Section 7.6(e), (vf), (h) salesor (k) (as a result of discussion with antitrust regulators in connection with such Investment) or (ii) as required pursuant to any consent decree or similar order or agreement, leaseswhich decree, transfers order or agreement is issued or entered into prior to the consummation of such Investment and dispositions made to in connection therewith by the Antitrust Division of the U.S. Department of Justice, the Bureau of Competition of the U.S. Federal Trade Commission and/or any similar state or foreign regulatory agency or body;
(k) within 180 days of the acquisition by the Borrower or any Subsidiary of any Real Property after the Closing Date the Borrower or such Subsidiary may sell or otherwise transfer such Real Property in connection with a wholly-owned Sale and Leaseback Transaction so long as the Borrower shall be in compliance with Section 7.2 after giving effect to such Sale and Leaseback Transaction; provided that the Net Cash Proceeds from such transaction are applied in accordance with Section 2.11(b); and
(l) any Subsidiary of the Borrower may issue additional Capital Stock to management or employees and (vi) a disposition by physicians under contract with the Borrower of all or substantially all any of its assets to Subsidiaries in an amount not in excess of $15,000,000 in the aggregate in any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entitytwelve month period.
Appears in 3 contracts
Samples: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets (other than Excluded AES Entities) to comply with Applicable Lawsany Excluded AES Entity, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded AES Entities, only Excluded AES Entities may sell, transfer or otherwise dispose of short-termassets to another Excluded AES Entity and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; provided, further, however, that for the avoidance of doubt, the transfer of AES GEH Holdings, LLC’s ownership interest in Global Energy Holdings CV to AES GEH, Inc. and the subsequent dissolution of AES GEH Holdings, LLC is permitted hereunder; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of consideration received by the Borrower and its SubsidiariesSubsidiaries for such asset shall have been determined on the basis of arms-length negotiations with a non-Affiliate, whether (ii) in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries or any Subsidiary Guarantor or Subsidiary thereof, no less than 75% of the purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on or within 30 days after the closing date of such sale, transfer or other disposition and (iii) any non-cash proceeds received by the Borrower or AES BVI II from the sale of such assets shall not consist of Debt or Equity Interests of the Borrower or any of its Subsidiaries (other than Debt of the Borrower or any of its Subsidiaries with a fair market value (together with the fair market value of the Debt of the Borrower or any of its Subsidiaries comprising the assets of any Person in which an Excluded AES Entity has made an Investment pursuant to Section 5.16(a)(vii) not in excess of $15,000,000 in the aggregate) and shall be pledged to the Collateral Trustees as Security Agreement Collateral under the Security Agreement;
(v) Liens permitted by the Financing Documents;
(vi) the sale of Equity Interests in a project in development or under construction the proceeds from which shall be used to fund the cost of development or construction of such project and the sales of Equity Interests by a Subsidiary the proceeds of which are used to fund the working capital and other needs of such Subsidiary and its Subsidiaries in the ordinary course of business, including reasonably anticipated needs for repaying Debt and other obligations and making Investments in its business;
(1) a disposition resulting from the bona fide exercise by governmental authority of its claimed or actual power of eminent domain; (2) any cash payments otherwise permitted under this Agreement; (3) any sale, transfer, conveyance, lease or other disposition of an asset in the ordinary course of business and consistent with past practice pursuant to the terms of any power sales agreement or steam sales agreement or other agreement or contract related to the output or product of, or services rendered by, a Power Supply Business as to which a Subsidiary is the supplying party; (4) any disposition of any Equity Interest in a Power Supply Business pursuant to the terms of a joint venture agreement, shareholders agreement or similar arrangement existing as of the Effective Date that requires one shareholder to transfer its interest to another upon terms and in circumstances customary for the industry (provided that, in the case of a disposition of Equity Interests in IPALCO or any of its Subsidiaries or any Subsidiary Guarantor or Subsidiary thereof, any cash received in connection with such disposition shall be treated as Net Cash Proceeds from a Asset Sale); or (5) any disposition of assets subject to a Lien permitted hereby that is transferred to the lienholder or its designee in satisfaction or settlement of the lienholder’s claim or a realization upon a security interest permitted under this Agreement;
(viii) any disposition in connection with directors’ qualifying shares or investments by foreign nationals mandated by applicable law;
(ix) any sale of shares of Redeemable Stock of a Subsidiary to the extent such shares constitute Debt permitted by Section 5.07;
(x) a sale-leaseback transaction involving substantially all of the assets of a Power Supply Business where a Subsidiary sells the Power Supply Business to a Person in exchange for the assumption by that Person of the Debt financing the Power Supply Business and the Subsidiary leases the Power Supply Business from such Person; provided that such sale, assumption and lease are consummated in each case on a no less than fair market value basis;
(xi) dispositions of contract rights, development rights and resource data made in connection with the initial development of an AES Business and prior to the commencement of commercial operation of such AES Business for reasonably equivalent value; and
(xii) transactions made in order to enhance the repatriation of cash from a Subsidiary where such Subsidiary is organized under the laws of any jurisdiction other than the United States or any state thereof to the extent that such cash is received or held by a Person subject in respect of such cash to the tax laws of a jurisdiction other than the United States or any state thereof or in order to increase the after-tax amounts thereof available for immediate distribution (provided that if any asset that is the subject of such transaction is subject to a Lien in favor of the Secured Holders immediately prior to such transaction then such asset shall be subject to a Lien in favor of the Secured Holders immediately after such transaction). provided that in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries or any Subsidiary Guarantor or Subsidiary thereof pursuant to clause (iv) above, the Borrower shall apply the Net Cash Proceeds from such sale to offer to prepay the Term Loans pursuant to Section 2.10(b), as specified therein. Notwithstanding the foregoing, the Borrower will not, and will not permit any of its Subsidiaries to, in one transaction or a series of related transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such salesell, lease, transfer or disposition, as applicable, are (A) used to retire Debt otherwise dispose of all or substantially all of the assets of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or on a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityconsolidated basis.
Appears in 3 contracts
Samples: Credit and Reimbursement Agreement (Aes Corp), Credit and Reimbursement Agreement (Aes Corp), Credit and Reimbursement Agreement (Aes Corp)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales the Borrower and its Subsidiaries may sell inventory in the ordinary course of business;
(A) the Borrower may sell, lease, transfer or otherwise dispose of any of its businessproperty or assets to any of the Subsidiaries, and (iiB) dispositions any of the Subsidiaries may sell, lease, transfer or otherwise dispose of any of its property or assets required to the Borrower or any of the other Subsidiaries; provided that, in each case, no such sale, lease, transfer or other disposition to non-wholly-owned Subsidiaries shall be sold to comply made unless, after giving pro forma effect thereto, the Borrower and its Subsidiaries would be in compliance with Applicable Laws, Section 5.02(l) and Section 5.04(d);
(iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (iv) sales, leases, transfers or dispositions of assets to any Person that is not a wholly-owned Subsidiary of the Borrower that is no longer actively engaged in any business or activities and does not have property and assets with an aggregate book value in excess of $1,000,000 may be wound up, liquidated or dissolved so long as such winding up, liquidation or dissolution is determined in good faith by management of the Borrower to be in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets best interests of the Borrower and its Subsidiaries;
(iv) the Borrower and its Subsidiaries may sell, whether lease, transfer or otherwise dispose of any obsolete, damaged or worn out equipment thereof or any other equipment that is otherwise no longer useful in one transaction the conduct of their businesses;
(v) the Borrower and its Subsidiaries may lease or a series sublease real property to the extent required for their respective businesses and operations in the ordinary course so long as such lease or sublease is not otherwise prohibited under the terms of transactionsthe Loan Documents;
(vi) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of property and assets not otherwise permitted to be sold, leased, transferred or disposed of pursuant to this Section 5.02(e) so long as the aggregate book value of all of the property and assets of the Borrower and its Subsidiaries sold, leased, transferred or otherwise disposed of pursuant to this clause (vi) does not exceed $300,000,000 in the aggregate during the term of this Agreement; provided that that:
(A) the gross proceeds received from any such salessale, leaseslease, transfers transfer or dispositions will other disposition shall be disregarded for purposes at least equal to the fair market value of such 10% limitation (andthe property and assets so sold, for leased, transferred or otherwise disposed of, determined at the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months time of such sale, lease, transfer or other disposition;
(B) at least 75% of the value of the aggregate consideration received from any such sale, lease, transfer or other disposition shall be in cash, provided, that up to one-third of such 75% may consist of notes or other obligations received by the Borrower or such Subsidiary that are due and payable or otherwise converted by the Borrower or such Subsidiary into cash within 365 days of receipt, which cash (to the extent received) shall constitute Net Cash Proceeds attributable to the original transaction; and provided further that any Debt of the Borrower or any of its Subsidiaries (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet) that is assumed by the transferee of any such assets shall constitute cash for purposes of this Section 5.02(e)(vi), so long as the Borrower and all of its Subsidiaries are fully and unconditionally released therefrom;
(C) immediately before and immediately after giving pro forma effect to any such sale, lease, transfer or other disposition, no Default shall have occurred and be continuing;
(D) within fifteen Business Days after each disposition under this subsection, the Borrower shall deliver to the Administrative Agent, on behalf of the Lender Parties, a certificate identifying the property disposed of and stating (a) that immediately before and after giving effect thereto, no Default or Event or Default existed, (b) that the consideration received or to be received by the Borrower or such Subsidiary for such property has been determined by the Borrower or the applicable Subsidiary to be not less than the fair market value of such property and (c) the total consideration to be paid in respect of such disposition and (d) the Net Cash Proceeds resulting from such disposition; and
(E) if and to the extent that the Net Cash Proceeds of any transaction effected pursuant to this Section 5.02(e)(vi) shall not have been reinvested in assets or property of the Borrower or any of its Subsidiaries with respect to any transaction completed (1) on or prior to December 31, 2002, by December 27, 2003 and (2) thereafter, within 360 days after the date of receipt thereof, then such uninvested Net Cash Proceeds shall be applied on the first Business Day following December 27, 2003 or the applicable 360-day period, as applicablethe case may be, are to prepay Advances in accordance with Section 2.06(b); and
(Avii) used to retire Debt of the Borrower and its Subsidiaries may exchange assets and properties with another Person; provided that:
(other than Debt that is subordinated A) the assets or properties received by the Borrower or its Subsidiaries shall be used in the business of the Borrower or such Subsidiary as conducted immediately prior to the Debt hereunder) such transaction, or in an incidental or related business;
(B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to total consideration received by the Borrower or a wholly-owned such Subsidiary of the Borrower and (vi) a disposition for such assets or property shall have been determined by the Borrower or such Subsidiary to be not less than the fair market value of all the assets or substantially all of its assets property exchanged;
(C) immediately before and immediately after giving pro forma effect to any Person so long as the requirements set forth in Section 5.02(bsuch exchange, no Default shall have occurred and be continuing;
(D) are satisfied as if such disposition were a merger or consolidation in which any cash received by the Borrower is or any such Subsidiary in connection with such exchange shall be treated as Net Cash Proceeds subject to Section 2.06(b) and any cash paid by the Borrower or any Subsidiary in connection with such exchange shall be treated as an acquisition expenditure under Section 5.02(f)(v); and
(E) within fifteen Business Days after each exchange under this Section 5.02(e)(vii), the Borrower shall deliver to the Administrative Agent, on behalf of the Lender Parties, a certificate identifying the assets or property disposed of and acquired in such exchange, and stating (a) that immediately before and after giving effect thereto, no Default or Event or Default existed, (b) that the total consideration received by the Borrower or such Subsidiary for such assets or property has been determined by the Borrower or such Subsidiary to be not less than the surviving entityfair market value of the assets or property exchanged, and (c) the amount, if any, of the cash paid or Net Cash Proceeds received in connection with such exchange.
Appears in 2 contracts
Samples: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of, any assets, or grant any irrevocable option or other right to purchase, lease or otherwise acquire any assets, except except:
(ia) sales of Inventory in the ordinary course of its business, in compliance with the terms of the Loan Documents, and the granting of any option or other right to purchase, lease or otherwise acquire Inventory in the ordinary course of its business and in compliance with the terms of the Loan Documents;
(iib) in a transaction authorized by Section 6.04;
(c) sales, transfers or other dispositions of assets required to be sold to comply with Applicable Laws, among Borrowers;
(iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (ivd) sales, leases, transfers or other dispositions of assets other than Collateral for consideration consisting of at least 75% cash and for fair value;
(e) sales of Receivables pursuant to any Master Intercompany Agreement;
(f) Sale/Leaseback Transactions with respect to the purchase of tooling and related manufacturing equipment in the ordinary course of business consistent with past practices;
(g) any sale, transfer or other disposition of defaulted receivables for collection or any sale, transfer or other disposition of property or assets in the ordinary course of business;
(h) the grant of any license of patents, trademarks, registrations therefor and other similar intellectual property in the ordinary course of business consistent with past practices;
(i) the granting of any Lien (or foreclosure thereon) securing Debt to the extent permitted hereunder;
(j) any sale, transfer or other disposition expressly permitted by Section 6.06; and
(k) any disposition of assets or property in the ordinary course of business to the extent such property or assets are surplus, negligible, obsolete, uneconomical, worn-out or no longer useful in the Borrowers’ business; provided, that any and all net cash proceeds from any sales, transfers, leases and other dispositions permitted hereby, which sales, transfers, leases or dispositions shall reduce Excess Availability to zero or less shall, on the date of receipt of payment for such sales, transfers, leases or dispositions by any Borrower, be applied to the repayment of outstanding amounts under and in accordance with Section 2.10(b). To the extent any Collateral is sold, transferred or otherwise disposed of as permitted by this Section 6.05 to any Person that is not a wholly-owned Subsidiary other than to any Borrower, such Collateral shall be sold free and clear of the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries, whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition Liens created by the Borrower of all Loan Documents, and the Agents shall be authorized to take any actions deemed appropriate in order to effect or substantially all of its assets to any Person so long as evidence the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityforegoing.
Appears in 1 contract
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets (other than Excluded AES Entities) to comply with Applicable Lawsany Excluded AES Entity, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded AES Entities, only Excluded AES Entities may sell, transfer or otherwise dispose of short-termassets to another Excluded AES Entity and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of consideration received by the Borrower and its SubsidiariesSubsidiaries for such asset shall have been determined on the basis of arms-length negotiations with a non-Affiliate, whether (ii) in one transaction the case of sales of assets or a series Equity Interests of, or other Investments in, IPALCO or any of transactions, provided that its Subsidiaries or any such sales, leases, transfers Subsidiary Guarantor or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds Subsidiary thereof, no less than 75% of the purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on or within 18 months 30 days after the closing date of such sale, lease, transfer or disposition, as applicable, are other disposition and (Aiii) used to retire any non-cash proceeds received by the Borrower or AES BVI II from the sale of such assets shall not consist of Debt or Equity Interests of the Borrower and or any of its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower or any of its Subsidiaries with a fair market value (together with the fair market value of the Debt of the Borrower or any of its Subsidiaries comprising the assets of any Person in which an Excluded AES Entity has made an Investment pursuant to Section 5.16(a)(vii) not in excess of $15,000,000 in the aggregate) and shall be pledged to the Collateral Trustees as Security Agreement Collateral under the Security Agreement;
(v) Liens permitted by the Financing Documents;
(vi) the sale of Equity Interests in a project in development or under construction the proceeds from which shall be used to fund the cost of development or construction of such project and the sales of Equity Interests by a Subsidiary the proceeds of which are used to fund the working capital and other needs of such Subsidiary and its Subsidiaries in the ordinary course of business, including reasonably anticipated needs for repaying Debt and other obligations and making Investments in its business;
(1) a disposition resulting from the bona fide exercise by governmental authority of its claimed or actual power of eminent domain; (2) any cash payments otherwise permitted under this Agreement; (3) any sale, transfer, conveyance, lease or other disposition of an asset in the ordinary course of business and consistent with past practice pursuant to the terms of any power sales agreement or steam sales agreement or other agreement or contract related to the output or product of, or services rendered by, a Power Supply Business as to which a Subsidiary is the supplying party; (4) any disposition of any Equity Interest in a Power Supply Business pursuant to the terms of a joint venture agreement, shareholders agreement or similar arrangement existing as of the Closing Date, date hereof that requires one shareholder to transfer its interest to another upon terms and in circumstances customary for the industry (vprovided that any cash received in connection with such disposition shall be treated as Net Cash Proceeds from a Covered Asset Sale); or (5) sales, leases, transfers and dispositions made any disposition of assets subject to a Lien permitted hereby that is transferred to the Borrower lienholder or its designee in satisfaction or settlement of the lienholder’s claim or a wholly-owned realization upon a security interest permitted under this Agreement;
(viii) any disposition in connection with directors’ qualifying shares or investments by foreign nationals mandated by applicable law;
(ix) any sale of shares of Redeemable Stock of a Subsidiary of to the Borrower and extent such shares constitute Debt permitted by Section 5.07;
(vix) a disposition by the Borrower of all or sale-leaseback transaction involving substantially all of its the assets of a Power Supply Business where a Subsidiary sells the Power Supply Business to a Person in exchange for the assumption by that Person of the Debt financing the Power Supply Business and the Subsidiary leases the Power Supply Business from such Person; provided that such sale, assumption and lease are consummated in each case on a no less than fair market value basis;
(xi) dispositions of contract rights, development rights and resource data made in connection with the initial development of an AES Business and prior to the commencement of commercial operation of such AES Business for reasonably equivalent value; and
(xii) transactions made in order to enhance the repatriation of cash from a Subsidiary where such Subsidiary is organized under the laws of any jurisdiction other than the United States or any state thereof to the extent that such cash is received or held by a Person so long as subject in respect of such cash to the requirements set forth tax laws of a jurisdiction other than the United States or any state thereof or in Section 5.02(border to increase the after-tax amounts thereof available for immediate distribution (provided that if any asset that is the subject of such transaction is subject to a Lien in favor of the Secured Holders immediately prior to such transaction then such asset shall be subject to a Lien in favor of the Secured Holders immediately after such transaction). provided that in the case of sales of assets pursuant to clause (iv) are satisfied as if such disposition were a merger or consolidation in which above, the Borrower is not shall apply the surviving entityNet Cash Proceeds from such sale to offer to prepay the Term Loans pursuant to Section 2.10(b), as specified therein.
Appears in 1 contract
Samples: Credit and Reimbursement Agreement (Aes Corporation)
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets (other than Excluded AES Entities) to comply with Applicable Lawsany Excluded AES Entity, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded AES Entities, only Excluded AES Entities may sell, transfer or otherwise dispose of short-termassets to another Excluded AES Entity and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; provided, further, however, that for the avoidance of doubt, the transfer of AES GEH Holdings, LLC’s ownership interest in Global Energy Holdings CV to AES GEH, Inc. and the subsequent dissolution of AES GEH Holdings, LLC is permitted hereunder; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of consideration received by the Borrower and its Subsidiaries for such asset shall have been determined on the basis of arms-length negotiations with a non-Affiliate, (ii) in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries, whether no less than 75% of the purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on or within 30 days after the closing date of such sale, transfer or other disposition and (iii) any non-cash proceeds received by the Borrower or AES BVI II from the sale of such assets shall not consist of Debt or Equity Interests of the Borrower or any of its Subsidiaries (other than Debt of the Borrower or any of its Subsidiaries with a fair market value (together with the fair market value of the Debt of the Borrower or any of its Subsidiaries comprising the assets of any Person in which an Excluded AES Entity has made an Investment pursuant to Section 5.16(a)(vii) not in excess of $15,000,000 in the aggregate) and shall be pledged to the Collateral Trustees as Security Agreement Collateral under the Security Agreement;
(v) Liens permitted by the Financing Documents;
(vi) the sale of Equity Interests in a project in development or under construction the proceeds from which shall be used to fund the cost of development or construction of such project and the sales of Equity Interests by a Subsidiary the proceeds of which are used to fund the working capital and other needs of such Subsidiary and its Subsidiaries in the ordinary course of business, including reasonably anticipated needs for repaying Debt and other obligations and making Investments in its business;
(1) a disposition resulting from the bona fide exercise by governmental authority of its claimed or actual power of eminent domain; (2) any cash payments otherwise permitted under this Agreement; (3) any sale, transfer, conveyance, lease or other disposition of an asset in the ordinary course of business and consistent with past practice pursuant to the terms of any power sales agreement or steam sales agreement or other agreement or contract related to the output or product of, or services rendered by, a Power Supply Business as to which a Subsidiary is the supplying party; (4) any disposition of any Equity Interest in a Power Supply Business pursuant to the terms of a joint venture agreement, shareholders agreement or similar arrangement existing as of the Effective Date that requires one shareholder to transfer its interest to another upon terms and in circumstances customary for the industry (provided that, in the case of a disposition of Equity Interests in IPALCO or any of its Subsidiaries, any cash received in connection with such disposition shall be treated as Net Cash Proceeds from a Asset Sale); or (5) any disposition of assets subject to a Lien permitted hereby that is transferred to the lienholder or its designee in satisfaction or settlement of the lienholder’s claim or a realization upon a security interest permitted under this Agreement;
(viii) any disposition in connection with directors’ qualifying shares or investments by foreign nationals mandated by applicable law;
(ix) any sale of shares of Redeemable Stock of a Subsidiary to the extent such shares constitute Debt permitted by Section 5.07;
(x) a sale-leaseback transaction involving substantially all of the assets of a Power Supply Business where a Subsidiary sells the Power Supply Business to a Person in exchange for the assumption by that Person of the Debt financing the Power Supply Business and the Subsidiary leases the Power Supply Business from such Person; provided that such sale, assumption and lease are consummated in each case on a no less than fair market value basis;
(xi) dispositions of contract rights, development rights and resource data made in connection with the initial development of an AES Business and prior to the commencement of commercial operation of such AES Business for reasonably equivalent value; and
(xii) transactions made in order to enhance the repatriation of cash from a Subsidiary where such Subsidiary is organized under the laws of any jurisdiction other than the United States or any state thereof to the extent that such cash is received or held by a Person subject in respect of such cash to the tax laws of a jurisdiction other than the United States or any state thereof or in order to increase the after-tax amounts thereof available for immediate distribution (provided that if any asset that is the subject of such transaction is subject to a Lien in favor of the Secured Holders immediately prior to such transaction then such asset shall be subject to a Lien in favor of the Secured Holders immediately after such transaction). provided that in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries pursuant to clause (iv) above, the Borrower shall apply the Net Cash Proceeds from such sale to offer to prepay the Term Loans pursuant to Section 2.10(b), as specified therein. Notwithstanding the foregoing, the Borrower will not, and will not permit any of its Subsidiaries to, in one transaction or a series of related transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such salesell, lease, transfer or disposition, as applicable, are (A) used to retire Debt otherwise dispose of all or substantially all of the assets of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or on a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityconsolidated basis.
Appears in 1 contract
Sales, Etc. of Assets. SellThe Loan Parties will not, leaseand will not permit any of their Subsidiaries to, directly or indirectly, sell, transfer or otherwise dispose of, or cause or permit of any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of, any its assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) the sales of inventory in the ordinary course of its business, ;
(ii) dispositions the sale or other disposition for fair market value of assets required to be sold to comply with Applicable Lawsobsolete or worn out property, or other property no longer used or useful in the conduct of business, in each case, disposed of in the ordinary course of business;
(iii) dispositions the sale, transfer or other disposition of short-term, readily marketable investments purchased for cash management purposes with funds not representing and Cash Equivalents in the proceeds ordinary course of other asset sales, business;
(iv) sales, leasestransfers or other dispositions of property that are a settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of any Borrower or any Subsidiary;
(v) sales, transfers or other dispositions constituting Liens permitted by Section 8.9;
(vi) dispositions constituting Permitted Investments or dispositions permitted by Section 8.3;
(vii) non-exclusive licenses of assets to any Person that is not a wholly-owned Subsidiary of the Borrower that intellectual Property in the aggregate during ordinary course of business and not interfering in any 12-month period do not exceed 10% of material respect with the Consolidated Assets business of the Borrower and its Subsidiaries;
(viii) the abandonment of Intellectual Property (or lapse of any registration or application in respect of Intellectual Property) that is, whether in the reasonable good faith judgment of the Borrower Agent, no longer economically practicable to maintain or useful in the conduct of the business of the Borrowers and their Subsidiaries;
(ix) the exclusive licensing by any Loan Party to one transaction or a series more Foreign Subsidiaries on an arm’s length basis of transactionsthe right to use Intellectual Property solely in jurisdictions outside of the United States and its territories, provided pursuant to any Intercompany License Agreement;
(a) any transfer of inventory, property or assets between or among the Loan Parties, (b) any transfer of inventory, property or assets between or among the Subsidiaries of the Borrowers that are not Loan Parties, and (c) any such transfer of inventory, property or assets from Subsidiaries of the Borrowers that are not Loan Parties to Loan Parties, in the case of this clause (c), in the ordinary course of business;
(xi) sales, leases, transfers or other dispositions will be disregarded of property to the extent that (A) such property is exchanged for purposes credit against the purchase price of such 10% limitation similar replacement property or (and, for B) the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, other disposition are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated promptly applied to the Debt hereunder) or purchase price of such replacement property;
(B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (vxii) sales, leasestransfers or other dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof; and
(xiii) any other sales, transfers and or other dispositions made in an aggregate principal amount not to the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to exceed $1,000,000 in any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityfiscal year.
Appears in 1 contract
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets to comply with Applicable Lawsany Excluded Subsidiary, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded Subsidiaries, only Excluded Subsidiaries may sell, transfer or otherwise dispose of short-termassets to another Excluded Subsidiary and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the consideration received by the Borrower that in and its Subsidiaries for such asset shall have been determined on the aggregate during any 12basis of arms-month period do not exceed 10length negotiations with a non-Affiliate, (ii) except for sales of assets or Equity Interests of, or other Investments in, Excluded Subsidiaries, no less than 90% of the Consolidated Assets purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on the closing date of such sale, transfer or other disposition; provided that (A) not less than 80% of the purchase price shall consist of cash in the case of the sale of the Power Supply Businesses known as "Meghnaghat", "Haripur", and "Kelanitissa" and (B) in the case of a sale, transfer or other disposition of a Power Supply Business in development or under construction, the applicable amount of the purchase price required to be received in cash shall be reduced dollar for dollar by the amount that such sale reduces any Capital Commitment of the Borrower and its Subsidiaries, whether in one transaction (iii) any non-cash proceeds received by the Borrower or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes AES BVI II from the sale of such 10% limitation (and, for the avoidance assets shall not consist of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer Debt or disposition, as applicable, are (A) used to retire Debt Equity Interests of the Borrower and or any of its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and or any of its Subsidiaries as with a fair market value (together with the fair market value of the Closing Date, (v) sales, leases, transfers and dispositions made to Debt of the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all any of its Subsidiaries comprising the assets to of any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which an Excluded Subsidiary has made an Investment pursuant to Section 5.16(a)(ix) not in excess of $15,000,000 in the Borrower is not aggregate) and shall be pledged to the surviving entity.Collateral Trustees as Security Agreement Collateral under the Security Agreement;
Appears in 1 contract
Samples: Credit, Reimbursement and Exchange Agreement (Aes Corporation)
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets (other than Excluded AES Entities) to comply with Applicable Lawsany Excluded AES Entity, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded AES Entities, only Excluded AES Entities may sell, transfer or otherwise dispose of short-termassets to another Excluded AES Entity and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the consideration received by the Borrower that in and its Subsidiaries for such asset shall have been determined on the aggregate during any 12basis of arms-month period do not exceed 10length negotiations with a non-Affiliate, (ii) except for sales of assets or Equity Interests of, or other Investments in, Excluded AES Entities or AES Bolivia Telecommunications S.A., no less than 90% of the Consolidated Assets purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on the closing date of such sale, transfer or other disposition; provided that (A) not less than 80% of the purchase price shall consist of cash in the case of the sale of the Power Supply Businesses known as “Meghnaghat”, “Haripur”, and “Kelanitissa” and (B) in the case of a sale, transfer or other disposition of a Power Supply Business in development or under construction, the applicable amount of the purchase price required to be received in cash shall be reduced dollar for dollar by the amount that such sale reduces any Capital Commitment of the Borrower and its Subsidiaries, whether in one transaction (iii) any non-cash proceeds received by the Borrower or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes AES BVI II from the sale of such 10% limitation (and, for the avoidance assets shall not consist of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer Debt or disposition, as applicable, are (A) used to retire Debt Equity Interests of the Borrower and or any of its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and or any of its Subsidiaries with a fair market value (together with the fair market value of the Debt of the Borrower or any of its Subsidiaries comprising the assets of any Person in which an Excluded AES Entity has made an Investment pursuant to Section 5.16(a)(vii) not in excess of $15,000,000 in the aggregate) and shall be pledged to the Collateral Trustees as Security Agreement Collateral under the Security Agreement;
(v) Liens permitted by the Financing Documents;
(vi) the sale of Equity Interests in a project in development or under construction the proceeds from which shall be used to fund the cost of development or construction of such project;
(1) a disposition resulting from the bona fide exercise by governmental authority of its claimed or actual power of eminent domain; (2) any cash payments otherwise permitted under this Agreement; (3) any sale, transfer, conveyance, lease or other disposition of an asset in the ordinary course of business and consistent with past practice pursuant to the terms of any power sales agreement or steam sales agreement or other agreement or contract related to the output or product of, or services rendered by, a Power Supply Business as to which a Subsidiary is the supplying party; (4) any disposition of any Equity Interest in a Power Supply Business pursuant to the terms of a joint venture agreement, shareholders agreement or similar arrangement existing as of the Closing Date, date hereof that requires one shareholder to transfer its interest to another upon terms and in circumstances customary for the industry (vprovided that any cash received in connection with such disposition shall be treated as Net Cash Proceeds from a Covered Asset Sale); or (5) sales, leases, transfers and dispositions made any disposition of assets subject to a Lien permitted hereby that is transferred to the Borrower lienholder or its designee in satisfaction or settlement of the lienholder’s claim or a wholly-owned realization upon a security interest permitted under this Agreement;
(viii) any disposition in connection with directors’ qualifying shares or investments by foreign nationals mandated by applicable law;
(ix) any sale of shares of Redeemable Stock of a Subsidiary of to the Borrower and extent such shares constitute Debt permitted by Section 5.07;
(vix) a disposition by the Borrower of all or sale-leaseback transaction involving substantially all of its the assets of a Power Supply Business where a Subsidiary sells the Power Supply Business to a Person in exchange for the assumption by that Person of the Debt financing the Power Supply Business and the Subsidiary leases the Power Supply Business from such Person; provided that such sale, assumption and lease are consummated in each case on a no less than fair market value basis;
(xi) dispositions of contract rights, development rights and resource data made in connection with the initial development of an AES Business and prior to the commencement of commercial operation of such AES Business for reasonably equivalent value; and
(xii) transactions made in order to enhance the repatriation of cash from a Subsidiary where such Subsidiary is organized under the laws of any jurisdiction other than the United States or any state thereof to the extent that such cash is received or held by a Person so long as subject in respect of such cash to the requirements set forth tax laws of a jurisdiction other than the United States or any state thereof or in Section 5.02(border to increase the after-tax amounts thereof available for immediate distribution (provided that if any asset that is the subject of such transaction is subject to a Lien in favor of the Secured Holders immediately prior to such transaction then such asset shall be subject to a Lien in favor of the Secured Holders immediately after such transaction). provided that in the case of sales of assets pursuant to clause (iv) are satisfied as if such disposition were a merger or consolidation in which above, the Borrower is not shall apply the surviving entityNet Cash Proceeds from such sale to offer to prepay the Term Loans pursuant to Section 2.10(b), as specified therein.
Appears in 1 contract
Samples: Credit and Reimbursement Agreement (Aes Corporation)
Sales, Etc. of Assets. Sell, leaselease (as lessor), transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, leaselease (as lessor), transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales in the ordinary course a transaction authorized by subsection (b) of its business, this Section;
(ii) dispositions the sale or other disposition to a third-party investor by the Parent or any of assets required its Subsidiaries of its rights to be sold receive distribution fees and contingent deferred sales charges pursuant to comply with Applicable Laws, a securitization program;
(iii) dispositions of short-termthe Parent and its Subsidiaries may, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (iv) sales, leases, transfers or dispositions of assets to during any Person that is not a wholly-owned Subsidiary fiscal year of the Borrower that in Parent (the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries"Test Year"), whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such salesell, lease, transfer or dispositionotherwise dispose of assets (including equity securities owned by such Persons) which, when aggregated with all other such dispositions and all mergers permitted by Section 5.02(b)(ii) (where such merger resulted in the loss by the Parent or a Subsidiary, as applicable, are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business operations or assets) for such Test Year, generated up to, but not exceeding, twenty percent (including geographic extensions thereof20%) of the Borrower and Consolidated operating income of the Parent during the immediately preceding fiscal year of the Parent; provided, that any determination of compliance with this clause (iii) shall take into account contributions to Consolidated operating income as measured on a pro forma basis for such immediately preceding fiscal year resulting from any acquisition by the Parent or its Subsidiaries of operating assets (or acquisition of equity securities of any Person holding such assets) that occurred during such Test Year or that is anticipated to occur within the twelve (12) month period immediately following the date on which the Parent or its Subsidiary, as of applicable, shall have entered into a definitive agreement for such acquisition if such definitive agreement is entered into during such Test Year. 68457597_7 (iv) the Closing Date, (v) sales, leases, transfers Parent and dispositions made to the Borrower or a wholly-owned any Subsidiary of the Borrower and (vi) a disposition by the Borrower Parent may sell, lease, transfer or otherwise dispose of all any or substantially all of its assets to the Parent or any Person so long as other Subsidiary (including any Excluded Subsidiary) of the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which Parent, except that neither the Parent nor the Borrower is not the surviving entity.shall be permitted to sell, lease, transfer or otherwise dispose of its assets to any Excluded Subsidiary under this clause (iv);
Appears in 1 contract
Samples: Credit Agreement (Invesco Ltd.)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, Assets or grant any option or other right to purchase, lease or to otherwise acquire any assets, except Assets other than:
(i) sales the sale or lease of power, capacity, the right to transmit electricity or natural gas, fuel and other products and services in the ordinary course of its business, ;
(ii) dispositions any sale, lease or other disposition of assets required to be sold to comply with Applicable Lawsdamaged, surplus, worn-out or obsolete Assets in the ordinary course of business;
(iii) dispositions the sale of short-term, readily marketable investments purchased for cash management purposes with funds not representing emission credits in the proceeds ordinary course of other asset sales, business;
(iv) sales, leases, transfers or dispositions of assets to any Person that is not a wholly-owned Subsidiary of transactions permitted under Section 5.02(d);
(v) the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries, whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or dispositionother disposition of Assets by AESC and its Subsidiaries;
(vi) sales, as applicabletransfers or other dispositions of other immaterial property (other than Equity Interests in, are (A) used to retire or Debt of any Subsidiary) in the ordinary course of business and on reasonable terms if no Default exists at the time of such sale, transfer or other disposition;
(vii) sales, transfers or other dispositions of Assets or Equity Interests among the Borrower and its Subsidiaries (other than Debt any AESC Company); provided that such sale, transfer or other disposition is subordinated (A) made in order to protect the Debt hereunder) value of such Asset or Equity Interests; (B) invested no Debt for Borrowed Money is incurred in assets connection therewith; and (C) no Lien is created, granted, incurred or assumed in similar connection therewith;
(viii) the limited recourse sale of accounts receivable in connection with the securitization thereof, which sale is non-recourse to the extent customary in securitizations and consistent with past practice in an amount not to exceed the amount set forth in Section 5.02(b)(xvi);
(ix) sales, transfers or related lines other dispositions of business any of the Borrower’s Assets or the Assets of the Regulated Subsidiaries (including geographic extensions thereofany Equity Interest in the Regulated Subsidiaries or any contractual rights); provided that (A) the consideration received by the Borrower or its Regulated Subsidiaries for such Asset shall have been determined on the basis of an arms-length negotiation with a non-Affiliates, (B) not less than 75% of the purchase price (excluding the amount of any Debt assumed in connection with any such sale or other disposition by a Person other than the Borrower or its Regulated Subsidiaries) for such asset shall be paid to the Borrower or its Regulated Subsidiaries solely in cash or Cash Equivalents, (C) no portion of the non-cash proceeds received by the Borrower and its Subsidiaries as shall consist of the Closing DateDebt of, (v) salesor Equity Interests in, leases, transfers and dispositions made to the Borrower or any of its Regulated Subsidiaries, (D) no Default or Event of Default shall have occurred and be continuing, (E) on or prior to such sale, transfer or disposition, all Debt secured by such asset shall have been either (1) defeased or repaid in full or (2) assumed by a wholly-owned Subsidiary of Person other than the Borrower or its Regulated Subsidiaries in connection with such sale, transfer or other disposition, and (viF) a disposition by the Borrower of all or substantially all of its assets to any Person so long as would be in compliance with the requirements covenants set forth in Section 5.02(b5.04 as of the most recently completed period ending prior to such transaction for which financial statements and certificates required by Section 5.03(b) are satisfied or 5.03(c) were required to have been delivered or for which comparable financial statements have been filed with the SEC, in each case after giving effect to such transaction and to any other event occurring during such period as to which pro forma recalculation is reasonably appropriate (including any other transaction described in this clause occurring after such period) as if such disposition were a merger transaction (and the repayment of any Debt in connection therewith) had occurred as of the first day of such period; and
(x) sales or consolidation transfers of Equity Interests in which the Borrower is not to any Plan. provided that in the surviving entitycase of sales, transfers or other dispositions of assets pursuant to clause (vi) or (ix) above, the Borrower shall prepay the Advances in accordance with the provisions of Section 2.06.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Restricted Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of Inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire Inventory in the ordinary course of its business, ;
(ii) in a transaction authorized by Section 5.02(d);
(iii) sales, transfers or other dispositions of assets required to be sold to comply with Applicable Laws, (iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing among the proceeds of other asset sales, Borrower and its Restricted Subsidiaries that are Guarantors;
(iv) sales, leases, transfers or other dispositions of assets to in connection with a Sale-and-Leaseback Transaction permitted under Section 5.02(r); and
(v) the sale of any Person that is not a wholly-owned Subsidiary of asset by the Borrower that in or any Restricted Subsidiary (other than a bulk sale of Inventory and a sale of Accounts other than delinquent accounts for collection purposes only) so long as (A) no Default under Section 6.01(a) or (f) and no Event of Default has occurred and is continuing or would occur after giving effect thereto, (B) the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of purchase price paid to the Borrower and its Subsidiaries, whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will Restricted Subsidiary for such asset shall be disregarded for purposes no less than the fair market value of such 10% limitation (and, for asset at the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months time of such sale, lease, transfer or disposition, as applicable, are (AC) used to retire Debt at least 75% of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made purchase price for such asset shall be paid to the Borrower or a wholly-owned such Restricted Subsidiary of solely in cash and (D) the Borrower and (vi) a disposition shall, on the date of receipt by the Borrower or any Restricted Subsidiary or any of all or substantially all their Subsidiaries of its assets to any Person so long as the requirements Net Cash Proceeds from such sale, prepay the Advances pursuant to, and in the amount and order of priority set forth in Section 5.02(bin, Sections 2.06(b) are satisfied as and 2.05, to the extent specified therein, it being understood and agreed that if such disposition were a merger at any time or consolidation in which from time to time, the aggregate amount of the Net Cash Proceeds received by the Borrower is not or any Restricted Subsidiary or any of their Subsidiaries under this clause (v) exceeds $75,000,000, all such Net Cash Proceeds, until so applied to the surviving entityAdvances or reinvested as permitted under Section 2.06, shall be delivered to the Collateral Agent for deposit into a cash collateral account controlled by the Collateral Agent.
Appears in 1 contract
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets (other than Excluded AES Entities) to comply with Applicable Lawsany Excluded AES Entity, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded AES Entities, only Excluded AES Entities may sell, transfer or otherwise dispose of short-termassets to another Excluded AES Entity and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; provided, further, however, that for the avoidance of doubt, the transfer of AES GEH Holdings, LLC’s ownership interest in Global Energy Holdings CV to AES GEH, Inc. and the subsequent dissolution of AES GEH Holdings, LLC is permitted hereunder; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of consideration received by the Borrower and its Subsidiaries for such asset shall have been determined on the basis of arms-length negotiations with a non-Affiliate, (ii) in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries, whether no less than 75% of the purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on or within 30 days after the closing date of such sale, transfer or other disposition and (iii) any non-cash proceeds received by the Borrower or AES BVI II from the sale of such assets (A) shall not consist of Debt or Equity Interests of the Borrower or any of its Subsidiaries (other than Debt of the Borrower or any of its Subsidiaries with a fair market value (together with the fair market value of the Debt of the Borrower or any of its Subsidiaries comprising the assets of any Person in which an Excluded AES Entity has made an Investment pursuant to Section 5.16(a)(vii)) not in excess of $15,000,000 in the aggregate) and (B) shall be pledged to the Collateral Trustees as Security Agreement Collateral under the Security Agreement;
(v) Liens permitted by the Financing Documents;
(vi) the sale of Equity Interests in a project in development or under construction the proceeds from which shall be used to fund the cost of development or construction of such project and the sales of Equity Interests by a Subsidiary the proceeds of which are used to fund the working capital and other needs of such Subsidiary and its Subsidiaries in the ordinary course of business, including reasonably anticipated needs for repaying Debt and other obligations and making Investments in its business;
(1) a disposition resulting from the bona fide exercise by governmental authority of its claimed or actual power of eminent domain; (2) any cash payments otherwise permitted under this Agreement; (3) any sale, transfer, conveyance, lease or other disposition of an asset in the ordinary course of business and consistent with past practice pursuant to the terms of any power sales agreement or steam sales agreement or other agreement or contract related to the output or product of, or services rendered by, a Power Supply Business as to which a Subsidiary is the supplying party; (4) any disposition of any Equity Interest in a Power Supply Business pursuant to the terms of a joint venture agreement, shareholders agreement or similar arrangement existing as of the Effective Date that requires one shareholder to transfer its interest to another upon terms and in circumstances customary for the industry (provided that, in the case of a disposition of Equity Interests in IPALCO or any of its Subsidiaries, any cash received in connection with such disposition shall be treated as Net Cash Proceeds from an Asset Sale); or (5) any disposition of assets subject to a Lien permitted hereby that is transferred to the lienholder or its designee in satisfaction or settlement of the lienholder’s claim or a realization upon a security interest permitted under this Agreement;
(viii) any disposition in connection with directors’ qualifying shares or investments by foreign nationals mandated by applicable law;
(ix) any sale of shares of Redeemable Stock of a Subsidiary to the extent such shares constitute Debt permitted by Section 5.07;
(x) a sale-leaseback transaction involving substantially all of the assets of a Power Supply Business where a Subsidiary sells the Power Supply Business to a Person in exchange for the assumption by that Person of the Debt financing the Power Supply Business and the Subsidiary leases the Power Supply Business from such Person; provided that such sale, assumption and lease are consummated in each case on a no less than fair market value basis;
(xi) dispositions of contract rights, development rights and resource data made in connection with the initial development of an AES Business and prior to the commencement of commercial operation of such AES Business for reasonably equivalent value; and
(xii) transactions made in order to enhance the repatriation of cash from a Subsidiary where such Subsidiary is organized under the laws of any jurisdiction other than the United States or any state thereof to the extent that such cash is received or held by a Person subject in respect of such cash to the tax laws of a jurisdiction other than the United States or any state thereof or in order to increase the after-tax amounts thereof available for immediate distribution (provided that if any asset that is the subject of such transaction is subject to a Lien in favor of the Secured Holders immediately prior to such transaction then such asset shall be subject to a Lien in favor of the Secured Holders immediately after such transaction); provided that in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries pursuant to clause (iv) above, the Borrower shall apply the Net Cash Proceeds from such sale to offer to prepay the Term Loans pursuant to Section 2.10(b), as specified therein. Notwithstanding the foregoing, the Borrower will not, and will not permit any of its Subsidiaries to, in one transaction or a series of related transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such salesell, lease, transfer or disposition, as applicable, are (A) used to retire Debt otherwise dispose of all or substantially all of the assets of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or on a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityconsolidated basis.
Appears in 1 contract
Sales, Etc. of Assets. SellThe Borrower will not, lease, transfer or otherwise dispose of, or cause or and will not permit any Subsidiary of the Borrower to its Designated Subsidiaries to, directly or indirectly, sell, lease, transfer or otherwise dispose of, of any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except for the sale or other disposition of (i) sales water from its impoundments at rates that compensate for any lost power production revenues, to the extent required under local or state law or ordinances and permitted under the permits and licenses governing a Facility, (ii) inventory and spare parts and other assets not necessary to the conduct of its business which are sold or otherwise disposed of in the ordinary course of its business, (ii) dispositions of assets required to be sold to comply with Applicable Laws, (iii) dispositions assets (A) the costs of short-termoperation or maintenance of which are, readily marketable investments purchased for cash management purposes with funds not representing in the reasonable determination of the Agent, greater than the revenues related thereto or (B) which are specified in Schedule 7.2(g), the proceeds of other asset saleswhich shall be applied in accordance with the provisions of Section 2.13(b)(i), (iv) salesequipment, leasesif the proceeds thereof are used within thirty days of receipt thereof to purchase replacement equipment of equal or greater value to the extent permitted under Section 2.13(b)(i), transfers (v) assets by Persons that become Subsidiaries of the Borrower after the Closing Date if the Borrower shall have given the Agent evidence satisfactory to the Agent that the net present value of the amount to be paid for the assets sold exceeds the net book value or dispositions the net present value thereof, the proceeds of which shall be deposited in the Depository Accounts and applied in accordance with the provisions of Section 2.15(a) and (b), (vi) the assets or capital stock or other equity interests of an Excluded Future Subsidiary if (A) written notice of such sale or other disposition shall have been given by the Borrower to the Agent not less than fifteen days before such sale or other disposition and (B) the Borrower shall have given the Agent evidence satisfactory to the Agent that the net present value of the amount to be paid for such assets or equity interests exceeds the net book value or the net present value thereof, (vii) assets identified in writing to the Agent at least ten days before sale, that are to be sold for their fair market value in cash, not to exceed $200,000 in the aggregate in any Person that is not fiscal year, the proceeds of which shall be applied in accordance with the provisions of Section 2.15(a) and (b), (viii) assets (A) to a wholly-owned Pledgor or (B) by a Subsidiary of the Borrower that in the aggregate during any 12-month period do is not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries, whether in one transaction a Pledgor or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed Pledged Subsidiary to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or a wholly-owned another Subsidiary of the Borrower and Borrower, (viix) a disposition assets by the Borrower of all or substantially all of its assets CHI Finance to any Person so long as that becomes, by operation of law or otherwise, a party to the requirements set forth in Section 5.02(bGuaranty simultaneously with its acquisition of such assets and (x) emissions offsets or other emissions reductions credits to the extent they are satisfied as if such disposition were a merger or consolidation in which not required for the Borrower is not operation of the surviving entityFacilities under applicable Requirements of Law.
Appears in 1 contract
Sales, Etc. of Assets. SellThe Borrower will not sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales of assets in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets in the ordinary course of its business, ;
(ii) in a transaction permitted by Section 5.11;
(iii) sales, transfers or other dispositions of assets required among the Borrower and its Subsidiaries; provided, however, that (a) in respect of sales, transfers or other dispositions by the Borrower to be sold its Subsidiaries, the Borrower shall not sell, lease, transfer or otherwise dispose of any assets (other than Excluded AES Entities) to comply with Applicable Lawsany Excluded AES Entity, and (b) in respect of sales, transfers or other dispositions by Subsidiaries to other Subsidiaries, (iii1) dispositions with respect to Excluded AES Entities, only Excluded AES Entities may sell, transfer or otherwise dispose of short-termassets to another Excluded AES Entity and (2) with respect to other Subsidiaries, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset such sales, transfers or other dispositions are either permitted by Section 5.16 or the transferring Subsidiary has received fair value for such sales, transfers or dispositions; provided, further, however, that for the avoidance of doubt, the transfer of AES GEH Holdings, LLC’s ownership interest in Global Energy Holdings CV to AES GEH, Inc. and the subsequent dissolution of AES GEH Holdings, LLC is permitted hereunder; and
(iv) sales, leases, transfers or other dispositions of assets to any Person that is not a wholly-owned Subsidiary of so long as (i) the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of consideration received by the Borrower and its Subsidiaries for such asset shall have been determined on the basis of arms-length negotiations with a non-Affiliate, (ii) in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries, whether no less than 75% of the purchase price for such asset shall be paid to the Borrower and its Subsidiaries solely in cash or securities or other obligations that can be readily converted to cash so long as such securities or other obligations are converted to cash on or within 30 days after the closing date of such sale, transfer or other disposition and (iii) any non-cash proceeds received by the Borrower or AES BVI II from the sale of such assets shall not consist of Debt or Equity Interests of the Borrower or any of its Subsidiaries (other than Debt of the Borrower or any of its Subsidiaries with a fair market value (together with the fair market value of the Debt of the Borrower or any of its Subsidiaries comprising the assets of any Person in which an Excluded AES Entity has made an Investment pursuant to Section 5.16(a)(vii) not in excess of $15,000,000 in the aggregate) and shall be pledged to the Collateral Trustees as Security Agreement Collateral under the Security Agreement; NYDOCS02/1004399.8 AES Sixth Amended and Restated Credit Agreement
(v) Liens permitted by the Financing Documents;
(vi) the sale of Equity Interests in a project in development or under construction the proceeds from which shall be used to fund the cost of development or construction of such project and the sales of Equity Interests by a Subsidiary the proceeds of which are used to fund the working capital and other needs of such Subsidiary and its Subsidiaries in the ordinary course of business, including reasonably anticipated needs for repaying Debt and other obligations and making Investments in its business;
(1) a disposition resulting from the bona fide exercise by governmental authority of its claimed or actual power of eminent domain; (2) any cash payments otherwise permitted under this Agreement; (3) any sale, transfer, conveyance, lease or other disposition of an asset in the ordinary course of business and consistent with past practice pursuant to the terms of any power sales agreement or steam sales agreement or other agreement or contract related to the output or product of, or services rendered by, a Power Supply Business as to which a Subsidiary is the supplying party; (4) any disposition of any Equity Interest in a Power Supply Business pursuant to the terms of a joint venture agreement, shareholders agreement or similar arrangement existing as of the Effective Date that requires one shareholder to transfer its interest to another upon terms and in circumstances customary for the industry (provided that, in the case of a disposition of Equity Interests in IPALCO or any of its Subsidiaries, any cash received in connection with such disposition shall be treated as Net Cash Proceeds from a Asset Sale); or (5) any disposition of assets subject to a Lien permitted hereby that is transferred to the lienholder or its designee in satisfaction or settlement of the lienholder’s claim or a realization upon a security interest permitted under this Agreement;
(viii) any disposition in connection with directors’ qualifying shares or investments by foreign nationals mandated by applicable law;
(ix) any sale of shares of Redeemable Stock of a Subsidiary to the extent such shares constitute Debt permitted by Section 5.07;
(x) a sale-leaseback transaction involving substantially all of the assets of a Power Supply Business where a Subsidiary sells the Power Supply Business to a Person in exchange for the assumption by that Person of the Debt financing the Power Supply Business and the Subsidiary leases the Power Supply Business from such Person; provided that such sale, assumption and lease are consummated in each case on a no less than fair market value basis;
(xi) dispositions of contract rights, development rights and resource data made in connection with the initial development of an AES Business and prior to the commencement of commercial operation of such AES Business for reasonably equivalent value; and
(xii) transactions made in order to enhance the repatriation of cash from a Subsidiary where such Subsidiary is organized under the laws of any jurisdiction other NYDOCS02/1004399.8 AES Sixth Amended and Restated Credit Agreement 103 than the United States or any state thereof to the extent that such cash is received or held by a Person subject in respect of such cash to the tax laws of a jurisdiction other than the United States or any state thereof or in order to increase the after-tax amounts thereof available for immediate distribution (provided that if any asset that is the subject of such transaction is subject to a Lien in favor of the Secured Holders immediately prior to such transaction then such asset shall be subject to a Lien in favor of the Secured Holders immediately after such transaction). provided that in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Subsidiaries pursuant to clause (iv) above, the Borrower shall apply the Net Cash Proceeds from such sale to offer to prepay the Term Loans pursuant to Section 2.10(b), as specified therein. Notwithstanding the foregoing, the Borrower will not, and will not permit any of its Subsidiaries to, in one transaction or a series of related transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such salesell, lease, transfer or disposition, as applicable, are (A) used to retire Debt otherwise dispose of all or substantially all of the assets of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or on a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entityconsolidated basis.
Appears in 1 contract
Sales, Etc. of Assets. Sell, leaselease (as lessor), transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower its Subsidiaries to sell, leaselease (as lessor), transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except except:
(i) sales in the ordinary course a transaction authorized by subsection (b) of its business, this Section;
(ii) dispositions the sale or other disposition to a third-party investor by the Parent or any of assets required its Subsidiaries of its rights to be sold receive distribution fees and contingent deferred sales charges pursuant to comply with Applicable Laws, a securitization program;
(iii) the Parent and its Subsidiaries may, during any fiscal year of the Parent (the "Test Year"), sell, lease, transfer or otherwise dispose of assets (including equity securities owned by such Persons) which, when aggregated with all other such dispositions and all mergers permitted by Section 5.02(b)(ii) (where such merger resulted in the loss by the Parent or a Subsidiary, as applicable, of short-termbusiness operations or assets) for such Test Year, readily marketable investments purchased generated up to, but not exceeding, twenty percent (20%) of the Consolidated operating income of the Parent during the immediately preceding fiscal year of the Parent; provided, that any determination of compliance with this clause (iii) shall take into account contributions to Consolidated operating income as measured on a pro forma basis for cash management purposes with funds not representing such immediately preceding fiscal year resulting from any acquisition by the proceeds Parent or its Subsidiaries of other asset salesoperating assets (or acquisition of equity securities of any Person holding such assets) that occurred during such Test Year or that is anticipated to occur within the twelve (12) month period immediately following the date on which the Parent or its Subsidiary, as applicable, shall have entered into a definitive agreement for such acquisition if such definitive agreement is entered into during such Test Year.
(iv) salesany Subsidiary of the Parent (other than a Loan Party) may sell, leaseslease, transfers transfer or dispositions otherwise dispose of up to (and including) all or substantially all of its assets to the Parent or any other Subsidiary of the Parent;
(v) any Guarantor may sell, lease, transfer or otherwise dispose of up to (and including) all or substantially all of its assets to any Person that is not a wholly-owned Loan Party or any other Subsidiary of the Borrower that Parent; provided, that, in the aggregate during case of any 12-month period do not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries, whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, are (A) used other disposition to retire Debt of the Borrower and its Subsidiaries (other than Debt a Subsidiary that is subordinated not a Loan Party, such transferee Subsidiary shall execute and deliver to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made Administrative Agent a joinder agreement to the Borrower Subsidiary Guaranty, in form and substance reasonably satisfactory to the Administrative Agent, prior to such sale, lease, transfer or a wholly-owned Subsidiary of the Borrower and other disposition;
(vi) a disposition by the any Borrower may sell, lease, transfer or otherwise dispose of all or substantially all of its assets to any Person so long as other Borrower; provided that in any case, after giving effect thereto, the requirements set forth representations and warranties contained in Section 5.02(b4.01(a) are satisfied as if with respect to either Invesco Finance US or Invesco Finance UK shall at all times be true and correct in all respects (except with respect to the good standing of such Borrower, which shall be true and correct in all material respects);
(vii) sales or other dispositions of obsolete equipment and furniture;
(viii) sales of assets pursuant to sale and leaseback transactions; and
(ix) the sale, transfer or other disposition were a merger or consolidation of cash, cash equivalents and securities in which the Borrower is not the surviving entityordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Invesco Ltd.)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or cause or permit any of its Subsidiaries to sell (including sales and issuances of Capital Stock of any Subsidiary (other than sales and issuances that do not decrease the percentage ownership of the Borrower to selland its Subsidiaries in each class of Capital Stock of such Subsidiary)), lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except (iprovided that the issuance and sale of stock by the Borrower shall not be subject to this Section 7.5):
(a) sales the Borrower and its Subsidiaries may sell inventory in the ordinary course of business;
(A) the Borrower may sell, lease, transfer or otherwise dispose of any of its business, (ii) dispositions of assets required to be sold to comply with Applicable Laws, (iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (iv) sales, leases, transfers property or dispositions of assets to any Person that of the Subsidiaries, and (B) any of the Subsidiaries may sell, lease, transfer or otherwise dispose of any of its property or assets to the Borrower or any of the other Subsidiaries; provided that, in each case (other than in connection with Intercompany Receivables), (x) if the transferor in such transaction is not a wholly-owned Domestic Subsidiary and the transferee in such transaction is a Domestic Subsidiary, on a pro forma basis, the Borrower and its Subsidiaries would be in compliance with Section 7.12 and Section 7.16 and (y) if the transferee in such transaction is a Foreign Subsidiary, such transaction is permitted by Section 7.6;
(c) any Subsidiary of the Borrower that is no longer actively engaged in any business or activities and does not have property and assets with an aggregate book value in excess of $1,000,000 may be wound up, liquidated or dissolved so long as such winding up, liquidation or dissolution is determined in good faith by management of the Borrower to be in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets best interests of the Borrower and its Subsidiaries;
(d) the Borrower and its Subsidiaries may sell, whether lease, transfer or otherwise dispose of any obsolete, damaged or worn out equipment thereof or any other equipment that is otherwise no longer useful in one transaction the conduct of their businesses;
(e) the Borrower and its Subsidiaries may lease or a series sublease Real Property to the extent required for their respective businesses and operations in the ordinary course so long as such lease or sublease is not otherwise prohibited under the terms of transactionsthe Loan Documents;
(f) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of property and assets not otherwise permitted to be sold, leased, transferred or disposed of pursuant to this Section 7.5 so long as the aggregate book value of all of the property and assets of the Borrower and its Subsidiaries sold, leased, transferred or otherwise disposed of pursuant to this clause (f) does not exceed $500,000,000625,000,000 in the aggregate since the Closing Date; provided that that:
(A) the gross proceeds received from any such salessale, leaseslease, transfers transfer or dispositions will other disposition shall be disregarded for purposes at least equal to the fair market value of such 10% limitation (andthe property and assets so sold, for leased, transferred or otherwise disposed of, determined at the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months time of such sale, lease, transfer or other disposition;
(B) at least 75% of the value of the aggregate consideration received from any such sale, lease, transfer or other disposition shall be in cash; provided that (i) up to one-third of such 75% may consist of notes or other obligations received by the Borrower or such Subsidiary that are due and payable or otherwise converted by the Borrower or such Subsidiary into cash within 365 days of receipt, which cash (to the extent received) shall constitute Net Cash Proceeds attributable to the original transaction; (ii) any unsubordinated Debt of the Borrower or any of its Subsidiaries (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet) that is assumed by the transferee of any such assets shall constitute cash for purposes of this Section 7.5(f), so long as the Borrower and all of its Subsidiaries are fully and unconditionally released therefrom; and (iii) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries, having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (B) after the Closing Date not to exceed $100,000,000 at the time of receipt of such Designated Non-Cash Consideration shall be deemed to be cash for purposes of this Section 7.5(f) (it being understood that the fair market value of each item of Designated Non-Cash Consideration is measured at the time of receipt without giving effect to subsequent changes in value); provided that if such Designated Non-Cash Consideration is sold for, or otherwise converted into, cash, such cash shall constitute Net Cash Proceeds attributable to the original Transaction;
(C) immediately before and immediately after giving pro forma effect to any such sale, lease, transfer or other disposition, as applicableno Default shall have occurred and be continuing;
(D) with respect to any disposition under this subsection that exceeds $50,000,000, are within five Business Days prior to such disposition, and with respect to any other disposition under this subsection, within 15 Business Days after such disposition, the Borrower shall deliver to the Administrative Agent, on behalf of the Lenders, a certificate identifying the property disposed of and stating (Aa) used that immediately before and after giving effect thereto, no Default existed or will exist, (b) that the consideration received or to retire Debt be received by the Borrower or such Subsidiary for such property has been determined by the Borrower or the applicable Subsidiary to be not less than the fair market value of such property, (c) the total expected consideration to be paid in respect of such disposition and (d) the expected Net Cash Proceeds resulting from such disposition; and
(E) if and to the extent that the Net Cash Proceeds of any transaction effected pursuant to this Section 7.5(f) shall not have been reinvested (pursuant to a Reinvestment Notice), such Net Cash Proceeds shall be applied to prepay Loans to the extent, and in accordance with, Section 2.11;
(g) the Borrower and its Subsidiaries may exchange assets and properties with another Person; provided that:
(other than Debt that is subordinated A) the assets or properties received by the Borrower or its Subsidiaries shall be used in a business permitted by Section 7.3 as conducted immediately prior to the Debt hereunder) such transaction, or in an incidental or related business;
(B) invested the total consideration received by the Borrower or such Subsidiary for such assets or property shall have been determined by the Borrower or such Subsidiary to be not less than the fair market value of the assets or property exchanged;
(C) immediately before and immediately after giving pro forma effect to any such exchange, no Default shall have occurred and be continuing;
(D) any cash received by the Borrower or any such Subsidiary in connection with such exchange shall be treated as Net Cash Proceeds subject to Section 2.11 and any cash paid by the Borrower or any Subsidiary in connection with such exchange shall be treated as an acquisition expenditure under Section 7.6(e);
(E) with respect to any exchange under this subsection that involves assets and/or property with a value in similar excess of $50,000,000, within five Business Days prior to such exchange, and with respect to any other exchange under this Section 7.5(g), within fifteen Business Days after such exchange, the Borrower shall deliver to the Administrative Agent, on behalf of the Lenders, a certificate identifying the assets or related lines property disposed of business and acquired in such exchange, and stating (including geographic extensions thereofa) that immediately before and after giving effect thereto, no Default existed or will exist, (b) that the total consideration received by or expected to be received by the Borrower or such Subsidiary for such assets or property has been determined by the Borrower or such Subsidiary to be not less than the fair market value of the assets or property exchanged, and (c) the amount, if any, of the expected cash to be paid or Net Cash Proceeds to be received in connection with such exchange;
(F) if Collateral is exchanged the assets and properties received in exchange shall constitute Collateral and Sections 6.12 and 6.13 shall be complied with;
(h) the Borrower and its Subsidiaries as may enter into Sale and Leaseback Transactions (i) with respect to the Denver Headquarters and (ii) with respect to any other property, provided that the aggregate value of property sold or transferred under this subclause (ii) shall not exceed $150,000,000225,000,000 since the Closing Date; provided that the Net Cash Proceeds from such transaction are applied in accordance with Section 2.11(b);
(i) the Borrower and its Subsidiaries may purchase, sell or otherwise transfer (including by capital contribution) Receivables Assets pursuant to Permitted Receivables Financings;
(j) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of assets or property (i) in anticipation of any Investment pursuant to Section 7.6(e), (vf), (h) salesor, leases(i), transfers (k) (, (l) and dispositions made (m) (including as a result of discussion with antitrust regulators in connection with such Investment) or (ii) as required pursuant to any consent decree or similar order or agreement, which decree, order or agreement is issued or entered into prior to the consummation of such Investment and in connection therewith by the Antitrust Division of the U.S. Department of Justice, the Bureau of Competition of the U.S. Federal Trade Commission and/or any similar state or foreign regulatory agency or body;
(k) within 180 days of the acquisition by the Borrower or any Subsidiary of any Real Property after the Closing Date the Borrower or such Subsidiary may sell or otherwise transfer such Real Property in connection with a wholly-owned Sale and Leaseback Transaction so long as the Borrower shall be in compliance with Section 7.2 after giving effect to such Sale and Leaseback Transaction; provided that the Net Cash Proceeds from such transaction are applied in accordance with Section 2.11(b); and
(l) any Subsidiary of the Borrower may issue additional Capital Stock to management or employees and (vi) a disposition by physicians under contract with the Borrower of all or substantially all any of its Subsidiaries in an amount not in excess of $15,000,000 in the aggregate in any twelve month period; and
(m) The Borrower and its Subsidiaries may enter into any transfer or disposition of property or assets constituting an Investment pursuant to any Person so long as the requirements set forth in Section 5.02(b7.6(e), (f), (h), (i), (k), (l) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entity(m).
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)