Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of 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: (i) sales and leases 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, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum; (ii) in a transaction authorized by Section 5.02(d) (other than subsection (iv) thereof); (iii) sales, transfers or other dispositions of assets among the Borrower and its Subsidiaries; provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i); (iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii); (v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000; and (vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash: (A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and (B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion).
Appears in 2 contracts
Samples: Credit Agreement (Ntelos Holdings Corp), Credit Agreement (Ntelos Holdings Corp)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of 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:
(i) sales and leases 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, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or SpectrumCertain Permitted Dispositions;
(ii) in a transaction authorized by Section 5.02(d) (other than subsection (iviii) thereof) or Section 5.02(f);
(iii) salesthe sale of any (x) asset identified on Schedule 5.02(e) hereto (such assets being “Excluded Assets”) or (y) any other assets in any Fiscal Year by BMCA or any Subsidiary, transfers the fair market value of which is not greater than $100,000,000; provided, however, that any unused portion thereof may be carried forward to any succeeding year, and provided further that the fair market value of all assets sold by BMCA or other dispositions any Subsidiary during the term of assets among the Borrower and its Subsidiaries; provided that this Agreement shall in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of be greater than $300,000,000 in the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi)(the foregoing asset sales described in clauses (x) and (y) above being collectively, shall not exceed $50,000,000, “Permitted Asset Sales”) so long as in each case (A) the terms of any such sale shall be commercially reasonable, (B) the purchase price paid to the Borrower BMCA or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, sale and (BC) at least 7566 2/3% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower BMCA or such Subsidiary solely in cash;
(iv) sales by means of a lease or sublease of property of BMCA or any of its Subsidiaries, so long as (Cx) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition transaction is permitted pursuant to Section 5.02(b) and (Dy) the aggregate purchase price paid BMCA or such Subsidiary continues to the Borrower and all reflect ownership of such property in its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause financial statements in accordance with GAAP;
(v) shall not exceed $10,000,000assignments and licenses of intellectual property of BMCA and its Subsidiaries in the ordinary course of business; and
(vi) sales dispositions of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid property not to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the exceed an aggregate fair market value of $10,000,000 in the aggregate, which in the commercially reasonable opinion of BMCA or such Subsidiary, and consistent with historic business segmentpractice, division or series is obsolete; provided that in the case of related sales of assets at the time of such salepursuant to clauses (i), (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalentsiii), (C) no Default shall have occurred and be continuing or would result from such any such sale iv), and (Dvi) immediately after giving effect to such saleabove, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of BMCA shall, on the date of such sale; provided further that receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds of any from such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv)sale, (v) and (vi)prepay the Advances pursuant to, each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to and in the Borrower or any Affiliate amount and order of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interestpriority set forth in, and
(B) any securitiesSection 2.06(b), notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)as specified therein.
Appears in 2 contracts
Samples: Revolving Credit Agreement (BMCA Acquisition Sub Inc.), Revolving Credit Agreement (Building Materials Manufacturing Corp)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of 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:
(i) sales and leases in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets Inventory in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) sales of assets and properties of the Borrower and its Subsidiaries no longer used or useful in the proper conduct of their respective businesses having a transaction authorized by Section 5.02(d) (value, together with the value of all other such property of the Borrower and its Subsidiaries so sold in the same Fiscal Year, of not greater than subsection (iv) thereof)$1,000,000;
(iii) salessales of other assets, transfers or other dispositions the higher of book value and fair market value of which at the time of such sale does not in the aggregate exceed the lesser of (A) 10% of the aggregate amount of the book value of assets among of the Borrower and its Subsidiaries; provided Subsidiaries at any time of determination and (B) $50,000,000 (less, in each case, the trade-in value of all such other assets traded in for replacement assets during such Fiscal Year and less the amount of the proceeds from such other dispositions that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets are expected to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(ibe and are used within ninety (90) days to acquire replacement assets);
(iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall sales at not exceed $50,000,000, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of the assets identified on Schedule 5.02(e), such asset and related amount not to exceed $2,000,000 (such assets at being the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii"Checotah Assets");
(v) sales, transfers the sale or other dispositions disposition of assetsassets to Parent or any of its Subsidiaries to the extent permitted by Sections 5.01(k) and 5.02(f);
(vi) the sale or discount of accounts (A) owing by Persons incorporated, so long as residing or having their principal place of business in the United States in an aggregate amount not exceeding $5,000,000 in face amount per calendar year or (B) that are past due by more than 90 days in an aggregate amount not exceeding $5,000,000 in face amount per calendar year, provided that the sale or discount of such accounts shall be in the ordinary course of the Borrower's business and consistent with prudent business practices; provided further, that the Borrower may make a one time sale of accounts in an aggregate amount not to exceed $15,000,000 during the period from the Effective Date to the Termination Date, provided that such sale shall be consistent with prudent business practices;
(A) the purchase price paid to licensing by the Borrower of trademarks and trade names with respect to those lines of business in which the Borrower is engaged as of the date hereof for consideration consisting of an upfront payment with respect thereto and (B) all other licensing by the Borrower of trademarks and trade names, provided in each case, that such licensing shall take place on an arm's-length basis, consistent with the provisions of the Trademark, Patent and Copyright Security Agreement;
(viii) the sale or such Subsidiary other disposition of assets for any such asset fair value to entities in the business of arranging barter transactions for consideration consisting of trade credits for goods and related assets shall services to be no used by the Borrower and its Subsidiaries in the ordinary course of business; and
(ix) the sale at not less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on comprising the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured 's skiwear and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)outlet divisions.
Appears in 2 contracts
Samples: Credit Agreement (Authentic Fitness Corp), Credit Agreement (Authentic Fitness Corp)
Sales, Etc. of Assets. SellUntil either (x) the Company has an Investment Grade Rating or (y) (1) the Public Debt Ratings are at least BB+ by S&P and Ba1 by Xxxxx’x and (2) the ratio of Covenant Debt of the Company and its Subsidiaries at such date to Consolidated EBITDA of the Company and its Subsidiaries for the most recently completed four consecutive fiscal quarters is less than 3.00 to 1.00, sell, lease, transfer or otherwise dispose of, or permit any of 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 assetsassets (unless such option is conditioned upon approval of the Required Lenders or termination of this Agreement), except:
except (i) sales and leases in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets inventory in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) in a transaction authorized by Section 5.02(dsubsection (b) of this Section, (other than subsection iii) in transactions between or among the Company and its Wholly-Owned Subsidiaries, (iv) thereof);
(iii) salesdispositions of obsolete or worn-out tools, transfers equipment or other property no longer used or useful in business and sales of intellectual property determined to be uneconomical, negligible or obsolete, (v) licenses and sub-licenses of intellectual property incurred in the ordinary course of business, (vi) dispositions of Marketable Securities, (vii) sales of accounts receivable to the extent permitted by Section 5.02(a)(v), (viii) leases of real property and (ix) sales of assets among for fair value in an aggregate amount not to exceed $25,000,000 or, if the Borrower and its Subsidiaries; Increase Conditions (as set forth below) are met, $50,000,000 in any year, provided that in no event shall the Borrower case of the sale of any asset in a single transaction or any Guarantor sell, transfer or otherwise dispose a series of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other dispositions of assets for related transactions in an aggregate purchase price whichamount exceeding $15,000,000, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at shall have been determined in good faith by the time Board of such sale, transfer or disposition, (B) Directors of the Company. The Increase Conditions are met on any date that the Public Debt Ratings are at least 75% BB+ by S&P and Ba1 by Xxxxx’x and the ratio of Covenant Debt of the purchase price for any Company and its Subsidiaries at such asset date to Consolidated EBITDA of the Company and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall most recently completed four consecutive fiscal quarters is not exceed $10,000,000; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid 3.00 to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)1.00.
Appears in 1 contract
Samples: Credit Agreement (Chemtura CORP)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of 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, other than Inventory to be sold in the ordinary course of its business, except:
(i) (A) sales and leases of Inventory in the ordinary course of its business and the granting (B) sales and leases of any option or other right to purchaseassets, lease or otherwise acquire assets including, without limitation, fiber sales in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment business consistent with prudent business practice for upgraded like equipment to be received within six months of such trade-companies engaged in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrumsimilar businesses;
(ii) in a transaction authorized by Section 5.02(d) (other than subsection clause (iviii) thereof);
(iii) sales, transfers or other dispositions sales of assets among for cash and for fair value (A) in an aggregate amount not to exceed (1) $50,000,000 in any Fiscal Year beginning prior to the Borrower date on which all Obligations under the First Lien Loan Documents or the Refinanced First Lien Loan Documents have been paid in full, or (2) $75,000,000 in the aggregate for all such sales occurring at any time prior to the date on which all Obligations under the First Lien Loan Documents or the Refinanced First Lien Loan Documents have been paid in full, and its Subsidiaries; provided that (B) in no event shall an aggregate amount not to exceed $10,000,000 in any Fiscal Year beginning after the Borrower date on which all Obligations under the First Lien Loan Documents or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i)the Refinanced First Lien Loan Documents have been paid in full;
(iv) sales, transfers or other dispositions sales of assets obsolete equipment for cash in an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant amount not to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as 25,000,000;
(Av) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such salelease, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers by the Parent or other dispositions any Subsidiary of assets, so long as (A) the purchase price paid Parent to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000a Loan Party; and
(vi) assignments, sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the other dispositions at fair market value of such business segmentaccounts receivable representing amounts owed to any Loan Party by any Person that is subject to a proceeding under the Bankruptcy Code; provided, division or series that in the case of related sales of assets at the time of such sale, pursuant to clause (Biii) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid above which (A) occur prior to the Borrower date on which all Obligations under the First Lien Loan Documents or such Subsidiary the Refinanced First Lien Loan Documents have been paid in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such salefull, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of Borrower shall, on the date of such sale; provided further that receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay the obligations under the First Lien Loan Documents or the Refinanced First Lien Loan Documents pursuant to, and in the amount and order of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv)priority set forth therein, (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to all such obligations have been satisfied, prepay the Borrower or any Affiliate Advances pursuant to, and in the amount and order of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest priority set forth in, Section 2.05(b)(ii), as specified therein, and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) occur after the date on which all Obligations under the First Lien Loan Documents or the Refinanced First Lien Loan Documents have been paid in full, the Borrower shall, on the date of receipt by any securitiesLoan Party or any of its Subsidiaries of the Net Cash Proceeds from such sale, notes prepay the Advances pursuant to, and in the amount and order of priority set forth in, Section 2.05(b)(ii), as specified therein. Nothing in this Section 5.02(e) shall restrict the Parent from issuing, selling, transferring or otherwise disposing of, for or without consideration and by dividend or otherwise, any Equity Interests in the Parent, or any option, warrant or other obligations received by right to purchase or otherwise acquire any Equity Interests in the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)Parent.
Appears in 1 contract
Samples: Credit Agreement (Itc Deltacom Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of 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 assetsacquire, except:
(i) sales and leases in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets Inventory in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) in a transaction authorized by Section 5.02(d) (other than subsection (iv) thereof);
(iii) salesso long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, transfers or other dispositions sales of assets among the Borrower for cash and its Subsidiaries; provided that for fair value in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets an aggregate amount not to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i)exceed $10,000,000 in each Fiscal Year;
(iv) sales, transfers or other dispositions the sale of assets for an aggregate purchase price which, exclusive of land related to the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, Whitley County mini-mill so long as (A) the purchase price paid prixx xxxx to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, cash and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all amount of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) sales shall not exceed $10,000,0005,000,000; and
(viv) the sale of a continuous bloom/beam blank casting machine by the Borrower to the Whitley County Holding Corporation and the sale of a furxxxx charging crane by the Borrower to the Whitley County Redevelopment Commission; provixxx xxxt in the case of sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iiiclause (iii) or (c)(iiiv) as if such sale had been consummated as of above, the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of Borrower shall, on the date of such sale; provided further that receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay the Advances pursuant to, and in the amount and order of any such sale are applied in accordance with priority set forth in, Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)specified therein.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any Restricted Subsidiary of its Subsidiaries any Credit Party to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or of (other right to purchase, lease or otherwise acquire any assets, except:
(i) sales and leases than 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, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) in connection with a transaction authorized by Section 5.02(dparagraph (b) (other than subsection (ivof this Section) thereof);
(iii) sales, transfers or other dispositions any substantial part of assets among the Borrower and its Subsidiariesassets; provided that in no event the foregoing shall not prohibit (i) the Borrower or realization on a Lien permitted to exist under Section 6.01(a); (ii) any Guarantor sellsuch sale, conveyance, lease, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as disposition that (A) the purchase (1) is for a price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no not materially less than the fair market value of such asset assets, (2) would not materially impair the ability of any Credit Party to perform its obligations under this Agreement and related assets at the time of (3) together with all other such salesales, transfer conveyances, leases, transfers and other dispositions, would have no Material Adverse Effect, or disposition, (B) at least 75% of would not result in the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, lease, transfer or other disposition; provided further that , in the aggregate, of (1) more than, in the case of the Borrower and its Restricted Subsidiaries (exclusive of OpCo and its Restricted Subsidiaries), 20% of the CPPL MLP OpCo Percentage of the Consolidated Net Cash Proceeds Tangible Assets in any fiscal year or (2) more than, in the case of the Credit Parties (including the Borrower and its Restricted Subsidiaries) in the aggregate, 20% of the Consolidated Net Tangible Assets in any such salefiscal year, transfer or other disposition are applied in each case, determined in accordance with Section 2.06(b)(ii);
GAAP; (iii) the Specified Separation Transaction; (iv) the IPO Transaction; (v) sales, transfers the conveyance of Capital Stock by any Credit Party to the Borrower or other dispositions any of assets, the Borrower’s Restricted Subsidiaries so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the Credit Party receives fair market value (as determined by the conflicts committee of the Board of Directors of each of CPPL and such asset Credit Party, or as evidenced by a fairness opinion of a nationally recognized investment bank) for such conveyance payable in cash or Capital Stock of the Borrower, and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or Event of Default exists or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000be caused thereby; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of inventory in the ordinary course of such asset Person’s business, (vii) the disposition of obsolete or Equity Interest, and
worn-out equipment in the ordinary course of such Person’s business or (Bvii) any securities, notes or the sale of assets between and among the Loan Parties and the other obligations received by the Borrower or any such Subsidiary from such transferee Credit Parties that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent Wholly-Owned Subsidiaries of the cash received in that conversion)Loan Parties.
Appears in 1 contract
Samples: Revolving Credit Agreement
Sales, Etc. of Assets. SellEach Borrower will not, leaseand will not permit any Designated Affiliate (other than any Foreign Subsidiary) to, directly or indirectly, in any fiscal year, sell, transfer or otherwise dispose of, or permit of any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease purchase or otherwise acquire any of its assets, except:
(i) sales and leases other than the sale of Inventory 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, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) in a transaction authorized by Section 5.02(d) (other than subsection (iv) thereof);
(iii) sales, transfers or other dispositions of assets among the Borrower and its Subsidiaries; provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000and, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have or Event of Default has occurred and be is continuing or would result from any such saletherefrom (including, transfer without limitation, an Event of Default under Section 2.1(a) or other disposition; provided further that (b) or Section 2.4(b) as the Net Cash Proceeds result of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(vcausing the amount of outstanding Loans and Letters of Credit to exceed the U.S. Borrowing Base or the Cdn. Borrowing Base, as applicable) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer lease, assignment, transfer, license or dispositionother disposition is for fair consideration (which may consist of Indebtedness constituting Permitted Intercompany Debt arising thereby in favor of such Borrower or Affiliate) and, to the extent applicable, complies with Section 7.1(c), (Bi) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition of Property and Equipment in any fiscal year of the Borrowers with an aggregate value not to exceed 5% of the shareholders equity of GPI as of the end of the prior fiscal year; (Dii) the aggregate purchase price paid to the Borrower sales or transfers of assets between and all among GPI and any of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:Spinoff -89- 90
(A) any liabilities, as shown on in the ordinary course of such Borrower’s 's or such Subsidiary’s most recent balance sheet, of the Borrower or Affiliate's business to any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations of GPI or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) outside the ordinary course of such Borrower's or Affiliate's business to any securities, notes or other obligations received by the Subsidiary of GPI that is not a Borrower or a Subsidiary of a Borrower so long as the aggregate value of all such assets transferred under this clause (ix) (I) in any fiscal year of GPI is not greater than US$25,000,000 less the amount of all Investments made under Section 7.2(k)(ii)(C) in such Subsidiary from fiscal year or (II) during any consecutive three-fiscal year period is not greater than US$50,000,000 less the amount of all Investments made under Section 7.2(k)(ii)(C) during such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)consecutive three-fiscal year period.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of its Subsidiaries Subsidiary Parties 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 and leases in the ordinary course of its business and the granting of any option or assets other right than Inventory to purchase, lease or otherwise acquire assets be sold in the ordinary course of its business, except:
(A) sales of used or obsolete equipment, trade-ins or exchanges inventory in the ordinary course of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;its business,
(iiB) in a transaction authorized by Section 5.02(d) (other than subsection (iv) thereof);
(iii) sales, transfers or other dispositions of assets among this Section,
(C) the Borrower and its Subsidiaries; provided that in no event shall sale of any asset by the Borrower or any Guarantor sell, transfer or otherwise dispose Subsidiary (other than a sale of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(ivaccounts receivables other than delinquent accounts for collection purposes only) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A1) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value as reasonably determined by the Borrower (or, in the case of assets with a fair market value exceeding $5,000,000, as reasonably determined by, and evidenced by a resolution of, the board of directors of the Borrower) of such asset and related assets at the time of such sale, transfer or disposition, (B2) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds consideration consisting of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby cash and (y) Consolidated Debt for Borrowed Money as notes in a principal amount not to exceed the greater of $5,000,000 or 25% of the date aggregate amount of such sale; consideration (provided further that the Net Cash Proceeds aggregate amount of all such notes from all such sales, transfers and other dispositions not exceed $20,000,000 at any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (vtime) and (vi), each of 3) the following shall be deemed Coverage Ratio for the Borrower for the four full fiscal quarters immediately preceding such sale taken as one period is equal to be cash:or greater than 2.0:1.0,
(AD) any liabilitiesso long as no Term Facility Default shall occur and be continuing, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee grant of any such assets option or Equity Interests pursuant other right to purchase any asset in a written novation agreement transaction that releases would be permitted under the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale provisions of such asset or Equity Interestclause (C) above, and
(BE) any securitiesthe Long Island Sale, notes or other obligations received by provided that in the case of sales of assets and the receipt of Net Cash Proceeds pursuant to clause (C) above, the Borrower or any such Subsidiary from such transferee that are (within 90 days shall comply with the provisions of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversionSection 2.06(b)(i).
Appears in 1 contract
Sales, Etc. of AssetsOF ASSETS. Sell, lease, transfer or otherwise dispose of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, assets or grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ia) sales and leases of any property (including Inventory) in the ordinary course of its business and the granting business;
(b) sales of any option obsolete, worn out or other right to purchase, lease or otherwise acquire assets surplus property in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(iic) in a transaction authorized as permitted by Section 5.02(d) (other than subsection (iv) thereof6.3(b);
(iiid) sales, transfers sales of property or other dispositions assets acquired in the Acquisition;
(e) the abandonment or other disposition of assets among patents, trademarks or other intellectual property that are, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries; provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i)Subsidiaries taken as a whole;
(ivf) sales, transfers or other dispositions sales of assets for (other than an aggregate purchase price whichasset included in Section 6.4(a), exclusive of (b), (c), (d), (e) or (g) the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall which in any Fiscal Year does not exceed $50,000,0001,000,000;
(g) the sale of any asset by the Borrower or any of its Subsidiaries (other than an asset included in Section 6.4(a), so (b), (c), (d), (e) or (f)) long as (Ai) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (Bii) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition cash and (Diii) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets during sold by the same Fiscal Year pursuant to this clause Borrower and its Subsidiaries (vother than an asset included in Section 6.4(a), (b), (c) or (d)) shall not exceed $10,000,00015,000,000 in any twelve month period measured from the end of the month in which such sale occurs; and
(vi) PROVIDED that in the case of sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of 6.4(g), the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of Borrower shall, on the date of such sale; provided further that receipt thereof, apply the entire Net Cash Proceeds of any from such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion2.6(b)(i).
Appears in 1 contract
Samples: Credit Agreement (Mosler Inc)
Sales, Etc. of Assets. SellExcept as otherwise expressly set forth in Section 6.4 with respect to transfers or other dispositions between the Borrower and any of its Subsidiaries or between or among such Subsidiaries, sell, lease, transfer or otherwise dispose of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, assets or grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ia) sales and leases Sales of Inventory in the ordinary course of its business and the granting business;
(b) Sales of any option obsolete or other right to purchase, lease surplus Equipment or otherwise acquire assets Equipment which is no longer useful in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(iic) in a transaction authorized by Section 5.02(d) Sales of assets (other than subsection an asset included in Section 6.5(a), (ivb), (d), (e), (f) thereof);
or (iiig) sales, transfers or other dispositions of assets among the Borrower and its Subsidiaries; provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall which in any Fiscal Year does not exceed $50,000,0001,000,000 and provided that no such sale shall be made if (A) such sale would impair the value or composition of the Collateral beyond the dollar value of the asset sale in any material respect, or (B) Default or Event of Default then exists or would exist after giving effect thereto;
(d) The sale of any fixed asset by the Borrower or any of its Subsidiaries (other than an asset included in Section 6.5(a), (b), (c) or (f)) so long as (Ai) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (Bii) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition cash and (Diii) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets during sold by the same Borrower and its Subsidiaries (other than an asset included in Section 6.5(a), (b), (c) or (f)) in any Fiscal Year pursuant to this clause (vd) shall not exceed $10,000,0001,000,000; and provided that no such sale shall be made if (A) such sale would impair the value or composition of the Collateral beyond the dollar value of the asset sale in any material respect, or (B) Default or Event of Default then exists or would exist after giving effect thereto; provided that in the case of sales of assets pursuant to Section 6.5 (c) or (d) the Borrower shall, on the date of receipt thereof, apply the entire Net Cash Proceeds from such sale in accordance with Section 2.6(b)(ii);
(e) Sell or liquidate Cash Equivalents in the ordinary course of business;
(f) Sale of Premier's assets which are unrelated to classic video or old-time radio;
(g) Sales of accounts receivable not exceeding $250,000 during any fiscal year of the Borrower for collection in the ordinary course of business, but not from and after the occurrence of a Default or Event of Default; and
(vih) sales Transactions in the ordinary course of the assets business including, without limitation, relating to rental, lease or licensing of one or more business segments, divisions or series of related assets that generate more than $50,000,000 customer lists and programs and similar rights to third party users in any transaction, so long as (A) the purchase price paid to which revenues are shared by the Borrower (or such Subsidiary for any such business segment, division or series one of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(ivits Subsidiaries), (v) and (vi), provided that in respect of each of the following shall be deemed to be cash:
(A) foregoing, no rights in any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, assets of the Borrower or any Subsidiary (other than contingent liabilities, Debt of its Subsidiaries shall be granted to any person that is by its terms subordinated to would limit the Obligations Borrower's rights in such assets in any materially adverse way or unsecured and liabilities to the extent owed Administrative Agent's rights with respect thereto in any materially adverse way or that would diminish the value of the assets to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets its Subsidiaries or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (its value as collateral to the extent of the cash received Administrative Agent in that conversion)any materially adverse way.
Appears in 1 contract
Sales, Etc. of AssetsOF ASSETS. Sell, lease, transfer or otherwise dispose of--------------------- of , or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets, or grant assets (excluding any option or other right leases of golf courses and related assets to purchase, lease or otherwise acquire any assets, except:
(i) sales and leases Golf Course Operators 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, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
) except (iii) in a transaction authorized by Section 5.02(d) (other than subsection (ivc) thereof);
of this Section 6.02, and (iiiii) salesthe sale of any asset by NGP, transfers or other dispositions of assets among the Borrower and its Subsidiaries; provided that in no event shall the Borrower or any Guarantor sell, transfer Subsidiary of NGP or otherwise dispose the Borrower (other than a bulk sale of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(ivinventory and a sale of receivables other than delinquent accounts for collection purposes only) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A) the purchase price paid to NGP, the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds of any such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets asset shall be paid to NGP, the Borrower or such Subsidiary either (1) in cash and/or Cash Equivalentsor (2) by means of a note, bond, debenture or similar instrument in each case the principal amount of which shall not exceed $5,000,000 for any such instrument or series of related instruments in connection with a single transaction or a series of related transactions and $10,000,000 in the aggregate for all such instruments for all such transactions (excluding, in each case, any Section 1031 Transaction), (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect the aggregate purchase price paid to such saleNGP, the pro forma Leverage Ratio at Borrower and all of their Subsidiaries for such asset and all other assets sold by NGP, the time Borrower and their Subsidiaries during the same fiscal year pursuant to this clause (ii) shall not exceed 10% of such sale shall be no greater than 4.50 to 1.00 Consolidated Net Tangible Assets of NGP and its Subsidiaries in any fiscal year of NGP, in each case measured as calculated by taking into account (x) EBITDA for of the four Fiscal Quarter period end of the most recently then ended recent fiscal year of NGP for which financial statements have been delivered by NGP to the Agent pursuant to Section 5.03(b)(iii6.03(c) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (yD) Consolidated Debt for Borrowed Money as of the Borrower shall, on the date of such sale; provided further that , prepay the Advances pursuant to, and in the order of priority set forth in, Section 2.05(b)(ii) in an aggregate principal amount equal to the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv)received by NGP, (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interestasset; provided, and
that no such prepayment under Section 2.05(b)(ii) shall be -------- required with respect to any such sale which qualifies as a Section 1031 Transaction, and (Biii) so long as no Default shall occur and be continuing, the grant of any securities, notes option or other obligations received by right to purchase any asset in a transaction which would be permitted under the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent provisions of the cash received in that conversionnext preceding clause (ii).
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of 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 acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire, any assets, except:
(i) sales and leases of inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets inventory in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) in a transaction authorized by permitted under Section 5.02(d) (other than subsection (iviii) thereof);
(iii) sales, transfers or other dispositions of assets (A) among Loan Parties, (B) by a Subsidiary of the Borrower and its Subsidiaries; provided that in no event shall is not a Loan Party to another Subsidiary of the Borrower or (C) by the Borrower or any Guarantor sell, transfer or otherwise dispose Subsidiary of assets the Borrower to an Excluded any Subsidiary unless such transaction is of the Borrower to the extent permitted under Section 5.02(f)(i) or (xiii);
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of receivables more than 90 days overdue and arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(v) leases, subleases or licenses of real property to other Persons not materially interfering with the business of the Borrower or any Subsidiary;
(vi) sales or other dispositions in the ordinary course of business of assets (including intellectual property) that have become obsolete, uneconomic, worn-out or no longer useful, including, without limitation, sales or dispositions arising from restructuring and closure of operations in connection with acquisitions otherwise permitted under Section 5.02(f);
(vii) Restricted Payments permitted by Section 5.02(g);
(viii) dispositions of cash and Cash Equivalents in the ordinary course of business;
(ix) sales, transfers or other dispositions of assets described on Schedule 5.02(e);
(x) nonexclusive licenses of patents, copyrights, trademarks, trade secrets and other intellectual property of the Borrower and its Subsidiaries entered into in the ordinary course of business; and
(xi) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive consideration consisting of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price cash and for any such asset and related assets shall be paid fair value in an aggregate amount not to exceed $40,000,000 (or, to the Borrower or such Subsidiary extent consummated while the Investment Grade Ratings are maintained, $120,000,000) in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other dispositionFiscal Year; provided further that in the case of sales of assets pursuant to clause (xi) above, the Borrower shall, on the date of receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds of any from such sale, transfer or other disposition are applied prepay the Advances pursuant to, and in accordance with the amount and order of priority set forth in, Section 2.06(b)(ii);
(v) sales, transfers or other dispositions of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year pursuant to this clause (v) shall not exceed $10,000,000; and
(vi) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion2.06(b)(i).
Appears in 1 contract
Sales, Etc. of Assets. SellUntil either (x) the Company has an Investment Grade Rating or (y) (1) the Public Debt Ratings are at least BB+ by S&P and Ba1 by Xxxxx'x and (2) the ratio of Covenant Debt of the Company and its Subsidiaries at such date to Consolidated EBITDA of the Company and its Subsidiaries for the most recently completed four consecutive fiscal quarters is less than 3.00 to 1.00, sell, lease, transfer or otherwise dispose of, or permit any of 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 assetsassets (unless such option is conditioned upon approval of the Required Lenders or termination of this Agreement), except:
except (i) sales and leases in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire assets inventory in the ordinary course of its business, sales of used or obsolete equipment, trade-ins or exchanges of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;
(ii) in a transaction authorized by Section 5.02(dsubsection (b) of this Section, (other than subsection iii) in transactions between or among the Company and its Wholly-Owned Subsidiaries, (iv) thereof);
(iii) salesdispositions of obsolete or worn-out tools, transfers equipment or other property no longer used or useful in business and sales of intellectual property determined to be uneconomical, negligible or obsolete, (v) licenses and sub-licenses of intellectual property incurred in the ordinary course of business, (vi) dispositions of Marketable Securities, (vii) sales of accounts receivable to the extent permitted by Section 5.02(a)(v), (viii) leases of real property and (ix) (1) sales of the Organic Peroxides business, the EPDM and Rubber Chemicals business and certain other businesses identified to the Lenders in a letter from the Company dated May 16, 2007 (so long as, to the extent that there are Advances outstanding, the net cash proceeds of the sales of the businesses referred to in this clause (1) are used to prepay such Advances), and (2) other sales of assets among the Borrower and its Subsidiaries; for fair value in an aggregate amount not to exceed $250,000,000 in any year, provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive case of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents and (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition; provided further that the Net Cash Proceeds sale of any such sale, transfer asset in a single transaction or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) sales, transfers or other dispositions a series of assets, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such assets during the same Fiscal Year transactions pursuant to this clause (vix)(2) shall not exceed in an aggregate amount exceeding $10,000,000; and
(vi) sales of the assets of one or more business segments50,000,000, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) the purchase price paid to the Borrower or such Subsidiary for any such business segment, division or series of related assets shall be no less than the fair market value of such business segment, division or series asset shall have been determined in good faith by the Board of related assets at the time of such sale, (B) at least 75% Directors of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interest, and
(B) any securities, notes or other obligations received by the Borrower or any such Subsidiary from such transferee that are (within 90 days of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversion)Company.
Appears in 1 contract
Samples: Credit Agreement (Chemtura CORP)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any of its Subsidiaries Subsidiary Parties 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 and leases in the ordinary course of its business and the granting of any option or assets other right than Inventory to purchase, lease or otherwise acquire assets be sold in the ordinary course of its business, except:
(A) sales of used or obsolete equipment, trade-ins or exchanges inventory in the ordinary course of used or obsolete equipment for upgraded like equipment to be received within six months of such trade-in or exchange, and exchanges or dispositions of or indefeasible rights to use fiber or Spectrum;its business,
(iiB) in a transaction authorized by Section 5.02(d) (other than subsection (iv) thereof);of this Section,
(iiiC) sales, transfers or other dispositions the sale of assets among the Borrower and its Subsidiaries; provided that in no event shall any asset by the Borrower or any Guarantor sell, transfer or otherwise dispose Subsidiary (other than a sale of assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(ivaccounts receivables other than delinquent accounts for collection purposes only) sales, transfers or other dispositions of assets for an aggregate purchase price which, exclusive of the aggregate purchase price of assets sold pursuant to Section 5.02(e)(vi), shall not exceed $50,000,000, so long as (A1) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value as reasonably determined by the Borrower (or, in the case of assets with a fair market value exceeding $5,000,000, as reasonably determined by, and evidenced by a resolution of, the board of directors of the Borrower) of such asset and related assets at the time of such sale, transfer or disposition, (B2) at least 75% of the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary in consideration consisting of (x) cash and/or Cash Equivalents and (Cy) no Default shall have occurred and be continuing notes in a principal amount not to exceed the greater of $5,000,000 or would result from any 25% of the aggregate amount of such sale, transfer or other disposition; consideration (provided further that the Net Cash Proceeds aggregate amount of any all such sale, transfer or other disposition are applied in accordance with Section 2.06(b)(ii);
(v) notes from all such sales, transfers or and other dispositions of assets, so long as (Anot exceed $20,000,000 at any time) the purchase price paid to the Borrower or such Subsidiary for any such asset and related assets shall be no less than the fair market value of such asset and related assets at the time of such sale, transfer or disposition, (B) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (D3) the aggregate purchase price paid to the Borrower and all of its Subsidiaries Subsidiary Parties for such asset and all other assets sold by the Borrower and its Subsidiary Parties during the same Fiscal Year pursuant to this clause (vC) shall not exceed $10,000,000; and25,000,000,
(viD) sales of the assets of one or more business segments, divisions or series of related assets that generate more than $50,000,000 in any transaction, so long as (A) no Working Capital Facility Default shall occur and be continuing, the grant of any option or other right to purchase price paid to any asset in a transaction that would be permitted under the Borrower or such Subsidiary for any such business segment, division or series provisions of related assets shall be no less than the fair market value of such business segment, division or series of related assets at the time of such sale, (B) at least 75% of the purchase price for any such business segment, division or series of related assets shall be paid to the Borrower or such Subsidiary in cash and/or Cash Equivalents, clause (C) no Default shall have occurred and be continuing or would result from such any such sale and (D) immediately after giving effect to such sale, the pro forma Leverage Ratio at the time of such sale shall be no greater than 4.50 to 1.00 as calculated by taking into account (x) EBITDA for the four Fiscal Quarter period most recently then ended for which financial statements have been delivered pursuant to Section 5.03(b)(iii) or (c)(ii) as if such sale had been consummated as of the first day of the fiscal period covered thereby and (y) Consolidated Debt for Borrowed Money as of the date of such sale; provided further that the Net Cash Proceeds of any such sale are applied in accordance with Section 2.06(b)(ii). For purposes of Section 5.02(e)(iv), (v) and (vi), each of the following shall be deemed to be cash:
(A) any liabilities, as shown on the Borrower’s or such Subsidiary’s most recent balance sheet, of the Borrower or any Subsidiary (other than contingent liabilities, Debt that is by its terms subordinated to the Obligations or unsecured and liabilities to the extent owed to the Borrower or any Affiliate of the Borrower) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation agreement that releases the Borrower or such Subsidiary from further liability therefor; provided that such liabilities were secured by such asset or Equity Interest and were required to be prepaid upon the sale of such asset or Equity Interestabove, and
(BE) any securitiesthe Long Island Sale, notes or other obligations received by 62 NYDOCS03/100354 Xxxxxxxx'x International Credit Agreement provided that in the case of sales of assets and the receipt of Net Cash Proceeds pursuant to clause (C) above, the Borrower or any such Subsidiary from such transferee that are (within 90 days shall comply with the provisions of receipt and subject to ordinary settlement periods) converted by the Borrower or such Subsidiary into cash (to the extent of the cash received in that conversionSection 2.06(b)(i).
Appears in 1 contract