Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction), or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction), any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except: (a) sales of inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory in the ordinary course of its business; (b) in a transaction authorized by Section 7.4 (other than subsection (c) thereof); (c) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantors; (d) the sale of any asset by the Borrower or any of its Subsidiaries (other than a bulk sale of inventory) so long as (i) no Event of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (iii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate; (e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding; (f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business; (g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement; (i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business; (i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer) (k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice; (l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries; (m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and (n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assets.
Appears in 1 contract
Samples: Credit Agreement (Logan's Roadhouse of Kansas, Inc.)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)--------------------- of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(a) sales of assets other than inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory be sold in the ordinary course of its business;, except:
(bi) sales of Inventory in the ordinary course of its business,
(ii) in a transaction authorized by Section 7.4 (other than subsection (cd)(i) thereof);or (ii) of this Section 5.02,
(ciii) sales, transfers the sale or other dispositions disposition of assets among damaged, worn out or obsolete property that is no longer necessary for the proper conduct of the business of the Borrower and Subsidiary Guarantors;its Subsidiaries in the ordinary course of business, provided that the fair value of the assets so sold -------- or otherwise disposed of shall not exceed $1,000,000 in the aggregate in any Fiscal Year,
(div) the sale or other disposition of assets by any Loan Party to any other Loan Party,
(v) the sale of assets or properties for fair value in an aggregate amount for any asset one such transaction or series of related transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or any of its Subsidiaries for fair value and for cash or senior promissory notes or equity of the seller thereof or like-kind assets (including, without limitation, the stock of the Person owning such assets) to be used in the business of the Borrower and its Subsidiaries or any other than a bulk assets, provided that the fair value of the assets so sold or exchanged shall -------- not exceed $25,000,000 in the aggregate in any Fiscal Year, provided -------- further that any notes or equity or other non-cash assets received in ------- connection with any sale or exchange of inventoryassets pursuant to this clause (vi) so long shall be pledged as (i) no Event Collateral securing the Obligations of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset Subsidiary, as the case may be, under the Loan Documents and the Secured Parties' lien and security interest therein shall be no less than perfected (and the Borrower shall, and shall cause any such Subsidiary to, take such action as the Collateral Agent may deem necessary or desirable to effect such perfection) in accordance with the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment manufacturing business for fair market value of such asset at the time of such sale, value,
(iiiviii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold lease by the Borrower and its Subsidiaries, as lessors, in the ordinary course of their respective business and on an arm's-length basis, of real property consisting of space located inside, in order to permit the aggregate purchase price paid service of alcoholic beverages and gaming operations pursuant to the Borrower applicable law, or outside and all of its Subsidiaries for such asset adjacent to, their respective bowling centers, and all other assets sold leasing arrangements entered into by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;business and without significant economic cost to the Borrower and its Subsidiaries, and
(gix) the sale KK Sublease on terms and conditions satisfactory to the Agents and upon the Administrative Agent's prior written consent, provided that in the case of sales or discount without recourse by exchanges of assets pursuant to -------- clauses (vi) and (vii) above, the Borrower or shall, on the date of receipt by any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower Loan Party or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash Net Cash Proceeds from such sale, prepay the Advances pursuant to, and Cash Equivalents in the ordinary course amount and order of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantorpriority set forth in, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary GuarantorSection 2.06(b)(ii), and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsspecified therein.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction), or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction), any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ai) sales of inventory Inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory Inventory in the ordinary course of its business;
(bii) sale, liquidation, or other disposition of assets under the Company’s Non-Qualified Deferred Compensation Plan when made for the purpose of distribution to participants,
(iii) in a transaction authorized by Section 7.4 5.02(d) (other than subsection (ciii) thereof);
(civ) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantors;
(dv) the sale of any asset by the Borrower or any of its Subsidiaries (other than a bulk sale of inventoryInventory) so long as (iA) no Event of Default shall occur and be continuing, (iiB) the purchase price paid to the Borrower or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (iiiC) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75100% cash and (ivD) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year Fiscal Year pursuant to this clause (eiv), shall not exceed $8,000,0005,000,000;
(vi) so long as (A) no Event of Default shall have occurred and be continuing, (B) immediately after giving effect thereto the Consolidated Total Leverage Ratio shall not exceed 3.75:1 and the Borrower and its subsidiaries shall be otherwise in compliance with all Section 5.04 and (C) the purchase or offering price paid to the Borrower and its Subsidiaries shall be no less than the fair market value thereof, the Borrower and its Subsidiaries may consummate the sale of assets or capital stock (including through a spin-off) and/or initial public offering of all or any portion of the capital stock of Xxxxx’x (any such sale or public offering, a “Permitted Disposition”) (and in connection therewith the Guaranty made be Xxxxx’x shall be released);
(vii) so long as no Event of Default shall have occurred and be continuing and the Borrower and its Subsidiaries shall be in pro forma compliance with Section 5.04 and shall receive cash therefor:
(A) Any Guarantor may, subject to the proviso below, sell, lease, transfer or otherwise dispose of real property with a fair market value in an aggregate amount not to exceed $150,000,000, so long as the aggregate fair market value of the real property sold in each Fiscal Year is less than $50,000,000;
(B) Any Guarantor may also sell, lease, transfer or otherwise dispose of other real property with a fair market value in an aggregate amount not to exceed $100,000,000;
(C) Xxxxx’x may, subject to the proviso below, sell, lease, transfer or otherwise dispose of real property in an aggregate fair market value of less than $5,000,000 in any Fiscal Year; and
(D) Xxxxx’x may also sell, lease, transfer or otherwise dispose of other real property, provided that if the fair market value of any real property of Xxxxx’x being sold, leased, transferred or otherwise disposed of pursuant to this clause (D), when aggregated with the fair market value of other real property sold, leased, transferred or otherwise disposed of by Xxxxx’x pursuant to this clause (D) in the then-current Fiscal Year, shall exceed $5,000,000, and the Consolidated Total Leverage Ratio after giving effect thereto shall exceed 3.75:1, the proceeds of such sale, lease, transfer or disposition shall be subject to the mandatory prepayment provisions set forth in Section 2.06(b)(ii); provided that in the case of any event since sale, lease, transfer or other disposition of assets pursuant to clauses (v), (vii)(A) or (vii)(C) above or the proviso to clause (vii)(D) above, the applicable Loan Party shall, on the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all receipt by such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower Loan Party or any of its Subsidiaries of obsoletethe Net Cash Proceeds from such sale, worn-outprepay the Advances pursuant to, damaged, unusable or surplus assets no longer used and in the business amount and order of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of priority set forth in, Section 4.172.06(b)(ii), the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsspecified therein.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, Assets or grant any option or other right to purchase, lease or to otherwise acquireacquire any Assets other than:
(i) the sale, or permit any of its Subsidiaries to grant any option or other right to purchasetransfer, lease or otherwise acquire any assetsother disposition of power, except:
(a) sales of inventory in capacity, the ordinary course of its business and the granting of any option or other right to purchasetransmit electricity or natural gas, lease or otherwise acquire inventory in the ordinary course of its business;
(b) in a transaction authorized by Section 7.4 (fuel and other than subsection (c) thereof);
(c) sales, transfers or other dispositions of assets among the Borrower products and Subsidiary Guarantors;
(d) the sale of any asset by the Borrower or any of its Subsidiaries (other than a bulk sale of inventory) so long as (i) no Event of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (iii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries services in the ordinary course of business;
(gii) the sale any sale, transfer, lease or discount without recourse by the Borrower other disposition of damaged, surplus, worn-out or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents obsolete Assets in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may sale, transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual emission, fuel, air quality or other environmental attributes or credits in the ordinary course of business;
(iv) transactions permitted under Section 5.02(d);
(v) the sale, lease, transfer or other disposition of Assets by AESC and its Subsidiaries;
(vi) sales, leases, transfers or other dispositions of other immaterial property (other than Equity Interests in, or Debt of any Subsidiary) in the ordinary course of business consistent with past practiceand on reasonable terms;
(lvii) sales, leases, subleasestransfers or other dispositions of Assets or Equity Interests among AYE and its Subsidiaries (other than any AESC Company); provided that such sale, licenses lease, transfer or sublicenses other disposition is (A) made in order to protect the value of real such Asset or personal Equity Interests; (B) no Debt for Borrowed Money is incurred in connection therewith; and (C) no Lien is created, granted, incurred or assumed in connection therewith;
(A) the sale or transfer of Assets in connection with a securitization thereof pursuant to the Pennsylvania Electricity Generation Customer Choice and Competition Act of 1996, as amended from time to time, (such property being sold or transferred, the "Intangible Transition Property" and such sale or transfer, the "Stranded Cost Securitization") in an amount not to exceed (x) $120,000,000 plus (y) the proceeds of any such sale or Debt in connection with respect such Stranded Cost Securitization applied to no greater than five locations granted voluntarily prepay the Facilities (but only if, and to the extent, AYE optionally terminates Commitments pursuant to Section 2.05(a) concurrently with, and in an amount equal to, such prepayment) minus (z) the aggregate amount of all capital contributions made by the Borrower AYE or any of its Subsidiaries to others Securitization SPVs with respect to Stranded Cost Securitizations;
(B) (1)the sale or transfer of Assets in connection with a securitization thereof pursuant to Section 24-2-4e of the Code of West Virginia (such property being sold or transferred, the "Environmental Control Property" and such sale or transfer, the "Environmental Control Property Securitization") or (2) the sale or transfer of other Assets in connection with any other Permitted Securitization (other than a Stranded Cost Securitization), in an amount with respect to clauses (1) and (2) not to exceed (x) $700,000,000 in the ordinary course aggregate plus (y) the proceeds of business any such sales or Debt in connection with such Environmental Control Property Securitization or other Permitted Securitization applied to voluntarily prepay the Facilities (but only if, and to the extent, AYE optionally terminates Commitments pursuant to Section 2.05(a) concurrently with, and in an amount equal to, such prepayment) minus (z) the aggregate amount of all capital contributions made by AYE or any of its Subsidiaries to Securitization SPVs with respect to Environmental Control Property Securitizations; and
(C) the sale, lease, transfer, swap, exchange or other disposition of Assets, including full or partial ownership percentages of AYE and its Subsidiaries' various generating facilities (including AGC and Bath County) or any Assets used in connection with or related to such generating facilities, including generating equipment, power, contract rights, permits, licenses and other intangibles; provided that (A) after any such Asset sale, lease, transfer, swap, exchange or other disposition, the Subsidiaries of AYE, taken as a whole, will continue to hold cumulative interests in all Assets equal to the amount they held prior to such sale, lease, transfer, swap, exchange or other disposition and (B) as a result of all Asset sales, leases, transfers, swaps, exchanges or other dispositions, taken as a whole, AYE and the Regulated Subsidiaries shall receive Assets with a fair market value in an amount not interfering less than the fair market value less $200,000,000 of all Assets sold, leased, transferred, swapped, exchanged or otherwise disposed of out of AYE and the Regulated Subsidiaries (determined on a cumulative basis);
(ix) sales, transfers or other dispositions of any of AYE's Assets or the Assets of the Regulated Subsidiaries (including any Equity Interest in the Regulated Subsidiaries or any material respect contractual rights); provided that (A) the consideration received by AYE or its Regulated Subsidiaries for such Asset shall have been determined on the basis of an arms-length negotiation with a non-Affiliates, (B) not less than 75% of the purchase price (excluding the amount of any Debt assumed in connection with any such sale or other disposition by a Person other than AYE or its Regulated Subsidiaries) for such asset shall be paid to AYE or its Regulated Subsidiaries solely in cash or Cash Equivalents, (C) no portion of the non-cash proceeds received by AYE and its Subsidiaries shall consist of Debt of, or Equity Interests in, AYE or any of its Regulated Subsidiaries, (D) no Default or Event of Default shall have occurred and be continuing, (E) on or prior to such sale, transfer or disposition, (1) all Debt (other than under this Agreement) of AYE and its Subsidiaries required by the terms thereof to be repaid or prepaid upon such sale, transfer or disposition shall have been so paid and (2) the relevant portion of the proceeds thereof required to be applied to the prepayment of the Advances and/or the Cash Collateralization of the L/C Obligations shall have been applied in accordance with the business terms contained in clause (1) of Borrower the proviso at the end of this Section 5.02(e), and (F) AYE would be in compliance with the covenants set forth in Section 5.04 as of the most recently completed period ending prior to such transaction for which financial statements and certificates required by Section 5.03(b) or 5.03(c) were required to have been delivered or for which comparable financial statements have been filed with the SEC, in each case after giving effect to such transaction and to any other event occurring during such period as to which pro forma recalculation is reasonably appropriate (including any other transaction described in this clause occurring after such period) as if such transaction (and the repayment of any Debt in connection therewith) had occurred as of the first day of such period;
(x) any sale, lease, transfer or other disposition of Assets from AYE or any Subsidiary of AYE to any other Subsidiary of AYE in connection with the Hunlock Transaction, so long as the fair market value of all Assets so sold, leased, transferred or otherwise disposed of, plus the fair market value of all Investments pursuant to Section 5.02(f)(x), does not exceed $45,000,000 in the aggregate;
(xi) sales or transfers of Equity Interests in AYE to any Plan;
(xii) the issuance of any Equity Interest by AYE or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(nxiii) sales, transfers or other dispositions by the Borrower or of Assets to any of its Subsidiaries of capital assets in the ordinary course of business Joint Venture to the extent permitted under Section 5.02(f)(xi); provided that in the case of sales, transfers or other dispositions of Assets pursuant to clause (ivi) such capital assets are promptly exchanged for credit against or (ix) above, AYE shall prepay the purchase price Advances and/or Cash Collateralize the L/C Obligations in accordance with the provisions of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsSection 2.06.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Restricted Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assetsassets (other than payments of cash or Cash Equivalents), or grant any option or other right to purchase, lease or otherwise acquire, or permit any purchase (to the extent the exercise of its Subsidiaries to grant any such option or other right to purchasepurchase would result in a transaction not otherwise permitted under this Section 5.2(e)), lease or otherwise acquire any assetsassets (each of the foregoing being a "Disposition"), except:
(ai) sales Dispositions (other than by way of inventory in the ordinary course lease) of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory Inventory in the ordinary course of its business;
(bii) in a transaction authorized by Section 7.4 Dispositions of (other than subsection (c) thereof);
(c) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantors;
(dx) the sale Anam Shares at (unless any such Disposition is made pursuant to clauses (viii) or (ix) of this Section 5.2(e)) Fair Market Value and (y) other assets for cash and for a Fair Market Value in an aggregate amount not to exceed (in respect of this clause (y) only) $25,000,000 in any Fiscal Year (provided, that in determining such amount in respect of any asset by the Borrower or any of its Subsidiaries (other than a bulk sale of inventory) so long as (i) no Event of Default shall occur and be continuinglease, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset amount shall be no less than the fair market value Fair Market Value of the assets subject to such asset at the time of such sale, lease); 70 72
(iii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value Dispositions of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-outsurplus, damaged, unusable worn or surplus obsolete fixed assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(giv) the sale making of Investments and Dispositions to the extent constituting Investments permitted by Section 5.2(f), provided that this clause (iv) shall not be construed so as to permit Dispositions of such Investments;
(v) sales or discount discounts without recourse by the Borrower or any Subsidiary thereof of accounts receivable receivables arising in the ordinary course of business in connection with the collection or compromise or collection thereof;
(hvi) subject to the requirements sales of Section 4.17, the disposition licenses or sublicenses by the Borrower or any such Restricted Subsidiary of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash patents, copyrights, trademarks, trade names and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property service marks in the ordinary course of business consistent and which do not materially interfere with past practice;
(l) leases, subleases, licenses or sublicenses the business of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its SubsidiariesRestricted Subsidiary;
(mvii) dispositions by Dispositions of any interest in property through the granting of a Lien permitted under Section 5.2(a);
(viii) Dispositions of assets (A) among the Borrower or and any of its the Domestic Subsidiaries that are Wholly-Owned Restricted Subsidiaries, (B) among any of property the Foreign Subsidiaries that are Wholly-Owned Restricted Subsidiaries and (C) from a Foreign Subsidiary that is not a Wholly-Owned Restricted Subsidiary to a Foreign Subsidiary that is a Wholly-Owned Restricted Subsidiary; provided that any such sale or assets subject disposition, in the case of this clause (C) only, is made on terms no less favorable to the applicable Wholly-Owned Restricted Subsidiary than would be provided for in an insurance claim or condemnation proceedingarm's length transaction; and
(nix) dispositions by Dispositions of assets to Non Wholly-Owned Affiliates made after the Borrower Effective Date; provided that, after giving effect to such sale or any of its Subsidiaries of capital assets in disposition, (A) the ordinary course of business to Affiliate Restricted Investment Amount does not exceed the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets Maximum Restricted Investment Amount and (iiB) at the proceeds time of such disposition are promptly applied to the purchase price of such replacement capital assetssale or disposition, no Default shall have occurred and be continuing or would result therefrom.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of any assets (including by any sale and leaseback transactionsubstantially all assets constituting the business of a division, branch or other operating unit), except that, if immediately after giving effect thereto no Default or permit Event of Default shall have occurred and be continuing:
(a) the Borrower or any of its Subsidiaries may sell or lease inventory in the ordinary course of business;
(b) the Borrower or any of its Subsidiaries may sell (i) any Real Property (and related fixtures and personal property) acquired, developed or purchased between January 21, 1992, and July 19, 1994, (ii) any Real Property (and related fixtures and personal property) acquired, developed or purchased with Real Estate Capital Expenditures and (iii) Property Held for Sale, in each case pursuant to sale-leaseback transactions for not less than the Fair Market Value of such assets;
(c) the Borrower or any of its Subsidiaries may sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction), any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option assets (including substantially all assets constituting the business of a division, branch or other right to purchaseoperating unit) for not less than the Fair Market Value of such assets, lease provided that the aggregate value of such assets sold, leased, transferred or otherwise acquire any assets, except:
(a) sales disposed of inventory in during the ordinary course term of its business and this Agreement shall not be greater than 10% of the granting total assets of any option or other right to purchase, lease or otherwise acquire inventory in the ordinary course of its business;
(b) in a transaction authorized by Section 7.4 (other than subsection (c) thereof);
(c) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantorsits Subsidiaries on a Consolidated basis as of January 1, 1994;
(d) the sale of any asset by the Borrower or any of its Subsidiaries (other than a bulk sale may sell, lease, transfer or otherwise dispose of inventory) so long as (i) no Event any of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary its assets for such asset shall be no less than the fair market Fair Market Value of such assets, provided that the aggregate value of such asset at the time assets sold, leased, transferred or otherwise disposed of such sale, (iii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year any Fiscal Year pursuant to this clause paragraph (e), d) shall not exceed be greater than $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate5,000,000;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property make charitable donations in the ordinary course of business consistent with past practicepractices;
(lf) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries may transfer assets to others wholly owned Subsidiaries of the Borrower, in each case in existence on the ordinary course of business not interfering in any material respect with the business of Borrower Effective Date or any of its Subsidiariespermitted to be formed under Section 6.06;
(mg) dispositions by the Borrower or any of its Subsidiaries of property or assets subject may terminate leases to an insurance claim or condemnation proceedingthe extent permitted by Section 5.10; and
(nh) dispositions by the Borrower or any of its Subsidiaries of capital assets may sell accounts receivables (or interests therein) in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsconnection with any Receivables Securitization.
Appears in 1 contract
Samples: Credit Agreement (Kroger Co)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Restricted Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ai) sales of inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory in the ordinary course of its business;,
(bii) in a transaction authorized by Section 7.4 (other than subsection (c) thereof5.02(b);,
(ciii) sales, transfers sales or other dispositions of assets among the Borrower and Subsidiary Guarantors;
(d) the sale of any asset by the Borrower or any of its Subsidiaries (other than a bulk sale of inventory) so long as (i) no Event of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (iii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsoletedamaged, worn-out, damaged, unusable out or surplus assets obsolete property that is no longer used in necessary for the proper conduct of the business of the Borrower or any of and its Subsidiaries for fair value in the ordinary course of business;,
(giv) sales or transfers of assets from any Major Subsidiary to any other Major Subsidiary or from any Minor Subsidiary to any Restricted Subsidiary for cash and for fair value,
(v) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising for cash and fair value in the ordinary course of business of the Borrower and its Subsidiaries; provided that recourse to the Borrower and its Subsidiaries in connection with the compromise or collection thereof;sales of accounts receivables for cash and fair value under this clause (v) shall be limited to recourse that is customary in connection with such sales, it being agreed that recourse with respect to collectibility of such accounts receivable will not be considered customary for purposes of this clause (v),
(hvi) subject sales or transfers of assets from any Major Subsidiary to any Minor Subsidiary for cash and for fair value,
(vii) sales or transfers of assets from the Borrower to any Restricted Subsidiary for cash for no less than fair value,
(viii) sales or transfers of assets from any Restricted Subsidiary to the requirements Borrower for cash for no more than fair value, and
(ix) in addition to the foregoing items, sales of Section 4.17assets for cash and exchanges of assets, in each case for fair value in an aggregate amount for such sales and exchanges not to exceed an amount equal to 20% of Consolidated EBITDA of the disposition Borrower and its Restricted Subsidiaries for the 12-month period then most recently ended and not to exceed, in the aggregate from the date hereof to the Termination Date, 35% of the greatest amount of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for any consecutive 12-month period commencing after the Effective Date, provided that, with respect to clauses (vi), (vii) and (ix) to the extent the Net Cash Proceeds thereof shall not have been reinvested within 12 months after the receipt thereof by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments such Restricted Subsidiary in cash and Cash Equivalents assets necessary in the ordinary course same or similar line of business;
(i) any Subsidiary Guarantor may transfer assets to businesses as the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary businesses of the Borrower that is not a Subsidiary Guarantor may transfer assets to and the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transferRestricted Subsidiaries, the Borrower or shall, at the end of such Subsidiary Guarantor shall not pay more than 12 month period, prepay the Advances pursuant to Section 2.09(b) in an amount equal to the fair market value of amount by which such assets as determined at Net Cash Proceeds exceeds the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsamount thereof so reinvested.
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(a) sales of assets other than inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory be sold in the ordinary course of its business;, except:
(bi) sales of Inventory in the ordinary course of its business,
(ii) in a transaction authorized by Section 7.4 (other than subsection (cd)(i) thereof);or (ii) of this Section 5.02,
(ciii) sales, transfers the sale or other dispositions disposition of assets among damaged, worn out or obsolete property that is no longer necessary for the proper conduct of the business of the Borrower and Subsidiary Guarantors;its Subsidiaries in the ordinary course of business, provided that the fair value of the assets so sold or otherwise disposed of shall not exceed $1,000,000 in the aggregate in any Fiscal Year,
(div) the sale or other disposition of assets by any Loan Party to any other Loan Party,
(v) the sale of assets or properties for fair value in an aggregate amount for any asset one such transaction or series of related transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or any of its Subsidiaries for fair value and for cash or senior promissory notes or equity of the seller thereof or like-kind assets (including, without limitation, the stock of 109 103 the Person owning such assets) to be used in the business of the Borrower and its Subsidiaries or any other than a bulk assets, provided that the fair value of the assets so sold or exchanged shall not exceed $10,000,000 in the aggregate in any Fiscal Year, provided further that any notes or equity or other non-cash assets received in connection with any sale or exchange of inventoryassets pursuant to this clause (vi) so long shall (A) not exceed $5,000,000 in value in the aggregate in any Fiscal Year, and (B) be pledged as (i) no Event Collateral securing the Obligations of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset Subsidiary, as the case may be, under the Loan Documents and the Secured Parties' lien and security interest therein shall be no less than perfected (and the Borrower shall, and shall cause any such Subsidiary to, take such action as the Collateral Agent may deem necessary or desirable to effect such perfection) in accordance with the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment manufacturing business for fair market value of such asset at the time of such salevalue, and
(iiiviii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold lease by the Borrower and its Subsidiaries, as lessors, in the ordinary course of their respective business and the aggregate purchase price paid to the Borrower on an arm's-length basis, of real property consisting of space located in their respective bowling centers, and all of its Subsidiaries for such asset and all other assets sold leasing arrangements entered into by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount business and without recourse by significant economic cost to the Borrower or any Subsidiary thereof and its Subsidiaries in order to permit the service of accounts receivable arising alcoholic beverages and gaming operations pursuant to applicable law, provided that in the ordinary course case of business in connection with the compromise sales or collection thereof;
exchanges of assets pursuant to clauses (hvi) subject to the requirements of Section 4.17and (vii) above, the disposition Borrower shall, on the date of receipt by the Borrower any Loan Party or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash Net Cash Proceeds from such sale, prepay the Advances pursuant to, and Cash Equivalents in the ordinary course amount and order of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantorpriority set forth in, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary GuarantorSection 2.06(b)(ii), and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsspecified therein.
Appears in 1 contract
Samples: Credit Agreement (Amf Group Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(a) sales of assets other than inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory be sold in the ordinary course of its business;, except:
(bi) sales of Inventory in the ordinary course of its business,
(ii) in a transaction authorized by Section 7.4 (other than subsection (cd)(i) thereof);or (ii) of this Section 5.02,
(ciii) sales, transfers the sale or other dispositions disposition of assets among damaged, worn out or obsolete property that is no longer necessary for the proper conduct of the business of the Borrower and Subsidiary Guarantors;its Subsidiaries in the ordinary course of business, provided that the fair value of the assets so sold or otherwise disposed of shall not exceed $1,000,000 in the aggregate in any Fiscal Year,
(div) the sale or other disposition of assets by any Loan Party to any other Loan Party,
(v) the sale of assets or properties for fair value in an aggregate amount for any asset one such transaction or series of related transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or any of its Subsidiaries for fair value and for cash or senior promissory notes or equity of the seller thereof or like-kind assets (including, without limitation, the stock of the Person owning such assets) to be used in the business of the Borrower and 143 113 its Subsidiaries or any other than a bulk assets, provided that the fair value of the assets so sold or exchanged shall not exceed $10,000,000 in the aggregate in any Fiscal Year, provided further that any notes or equity or other non-cash assets received in connection with any sale or exchange of inventoryassets pursuant to this clause (vi) so long shall (A) not exceed $5,000,000 in value in the aggregate in any Fiscal Year, and (B) be pledged as (i) no Event Collateral securing the Obligations of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset Subsidiary, as the case may be, under the Loan Documents and the Secured Parties' lien and security interest therein shall be no less than perfected (and the Borrower shall, and shall cause any such Subsidiary to, take such action as the Collateral Agent may deem necessary or desirable to effect such perfection) in accordance with the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment manufacturing business for fair market value of such asset at the time of such salevalue, and
(iiiviii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold lease by the Borrower and its Subsidiaries, as lessors, in the ordinary course of their respective business and the aggregate purchase price paid to the Borrower on an arm's-length basis, of real property consisting of space located in their respective bowling centers, and all of its Subsidiaries for such asset and all other assets sold leasing arrangements entered into by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount business and without recourse by significant economic cost to the Borrower or any Subsidiary thereof and its Subsidiaries in order to permit the service of accounts receivable arising alcoholic beverages and gaming operations pursuant to applicable law, provided that in the ordinary course case of business in connection with the compromise sales or collection thereof;
exchanges of assets pursuant to clauses (hvi) subject to the requirements of Section 4.17and (vii) above, the disposition Borrower shall, on the date of receipt by the Borrower any Loan Party or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash Net Cash Proceeds from such sale, prepay the Advances pursuant to, and Cash Equivalents in the ordinary course amount and order of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantorpriority set forth in, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary GuarantorSection 2.06(b)(ii), and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsspecified therein.
Appears in 1 contract
Samples: Credit Agreement (Amf Group Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(a) sales of assets other than inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory be sold in the ordinary course of its business;, except:
(bi) sales of Inventory in the ordinary course of its business,
(ii) in a transaction authorized by Section 7.4 (other than subsection (cd)(i) thereof);or (ii) of this Section 5.02,
(ciii) sales, transfers the sale or other dispositions disposition of assets among damaged, worn out or obsolete property that is no longer necessary for the proper conduct of the business of the Borrower and Subsidiary Guarantors;its Subsidiaries in the ordinary course of business, provided that the fair value of the assets so sold or otherwise disposed of shall not exceed $1,000,000 in the aggregate in any Fiscal Year,
(div) the sale or other disposition of assets by any Loan Party to any other Loan Party,
(v) the sale of assets or properties for fair value in an aggregate amount for any asset one such transaction or series of related transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or any of its Subsidiaries for fair value and for cash or senior promissory notes or equity of the seller thereof or like-kind assets (including, without limitation, the stock of the Person owning such assets) to be used in the business of the Borrower and its Subsidiaries or any other than a bulk assets, provided that the fair value of the assets so sold or exchanged shall not exceed $25,000,000 in the aggregate in any Fiscal Year, provided further that any notes or equity or other non-cash assets 118 112 received in connection with any sale or exchange of inventoryassets pursuant to this clause (vi) so long shall be pledged as (i) no Event Collateral securing the Obligations of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset Subsidiary, as the case may be, under the Loan Documents and the Secured Parties' lien and security interest therein shall be no less than perfected (and the Borrower shall, and shall cause any such Subsidiary to, take such action as the Collateral Agent may deem necessary or desirable to effect such perfection) in accordance with the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment manufacturing business for fair market value of such asset at the time of such salevalue, and
(iiiviii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold lease by the Borrower and its Subsidiaries, as lessors, in the ordinary course of their respective business and the aggregate purchase price paid to the Borrower on an arm's-length basis, of real property consisting of space located in their respective bowling centers, and all of its Subsidiaries for such asset and all other assets sold leasing arrangements entered into by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount business and without recourse by significant economic cost to the Borrower or any Subsidiary thereof and its Subsidiaries in order to permit the service of accounts receivable arising alcoholic beverages and gaming operations pursuant to applicable law, provided that in the ordinary course case of business in connection with the compromise sales or collection thereof;
exchanges of assets pursuant to clauses (hvi) subject to the requirements of Section 4.17and (vii) above, the disposition Borrower shall, on the date of receipt by the Borrower any Loan Party or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash Net Cash Proceeds from such sale, prepay the Advances pursuant to, and Cash Equivalents in the ordinary course amount and order of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantorpriority set forth in, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary GuarantorSection 2.06(b)(ii), and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsspecified therein.
Appears in 1 contract
Samples: Credit Agreement (Amf Bowling Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)--------------------- of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ai) sales of inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory in the ordinary course of its business;,
(bii) in a transaction authorized by Section 7.4 (other than subsection (cb) thereof);of this Section,
(c) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantors;
(diii) the sale of Equity Interests in EPYX pursuant to any asset by EPYX Transaction; provided that the Borrower or any proceeds of its Subsidiaries (other than a bulk sale all such sales are -------- deposited into the EPYX Escrow Account pending investment of inventorysuch funds pursuant to Section 5.02(f)(vii) so long as (i) no Event subject, however, in the case of Default shall occur and be continuing, (ii) the purchase price paid Xxxx Proceeds to the Borrower or such Subsidiary for such asset shall be no less than the fair market value provisions of such asset at the time of such sale, (iii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and Section 5.01(p).
(iv) the aggregate fair market value sale of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid Equity Interests in TIME pursuant to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;TIME IPO,
(ev) the sale and leaseback other sales of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that assets by such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;, provided that the aggregate book value of all assets -------- sold by the Borrowers and their respective Subsidiaries on or after June 22, 1998 shall not exceed $15,000,000, and provided further that, -------- ------- in the case of the sale of any asset in a single transaction or a series of related transactions in an aggregate amount exceeding $1,000,000, the fair value of such asset shall have been determined in good faith by the Board of Directors of such Borrower,
(mvi) dispositions by the Borrower disposal of obsolete or worn-out equipment, and
(A) any Loan Party or Domestic Subsidiary may sell, lease transfer or otherwise dispose of any of its Subsidiaries of property or assets subject to an insurance claim any other Loan Party or condemnation proceeding; and
Domestic Subsidiary and (nB) dispositions by the Borrower any Foreign Subsidiary (other than a Subsidiary Guarantor) may sell, lease, transfer or otherwise dispose of any of its Subsidiaries property or assets to any Loan Party or any Subsidiary of capital assets in the ordinary course of business any Loan Party, provided that any such sale, lease, transfer or disposal to the extent any Subsidiary that (i) such capital assets are promptly exchanged is not a Loan Party shall be for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsfair market value.
Appears in 1 contract
Samples: Credit Agreement (C Quential Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ai) sales and leases of inventory Inventory in the ordinary course of its business and business, the granting of any option or other right to purchase, lease or otherwise acquire inventory Inventory in the ordinary course of its business, leases or subleases of real 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 the absence of which would not interfere in any material respect with the ordinary conduct of business of the Borrower or any of its Subsidiaries;
(bii) in a transaction authorized by Section 7.4 5.02(d) (other than subsection (ciii) thereof);
(ciii) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantors;
(d) the sale of any asset by Loan Parties; provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of its Subsidiaries assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other than a bulk sale dispositions of inventory) assets, so long as (i) no Event of Default shall occur and be continuing, (iia) 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, (iiib) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in at least 75% cash cash, (c) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (ivd) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year Fiscal Year pursuant to this clause (e), iv) shall not exceed $8,000,0007,500,000;
(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 event since such sale, transfer or other disposition and (d) the date aggregate purchase price paid to the Borrower and all of its Subsidiaries for all such assets pursuant to this Agreement clause (v) shall not exceed $20,000,000 in the aggregate; provided thatand
(vi) sales, notwithstanding the foregoing clause (iv)transfers or other dispositions of assets, restaurant properties may be sold to franchisees, as so long as (a) the sales purchase price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor for any such asset and related assets shall not pay more be no less than an amount equal to the fair market value of such asset and related assets as determined at the time of such transfer)
sale, transfer or disposition, (kb) the leasepurchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, sublease(c) no Default shall have occurred and be continuing or would result from any such sale, licensetransfer or other disposition, sublicense(d) immediately after giving effect to such sale, abandonmenttransfer or other disposition, non-renewal the pro forma Leverage Ratio at the time of such sale, transfer or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to shall be no greater than five locations granted (i) 4.50:1.00 for sales, transfers or other dispositions closing on or before December 31, 2013, (ii) 4.25:1.00 for sales, transfers or other dispositions closing during the period from January 1, 2014 through December 31, 2014, (iii) 4.00:1.00 for sales, transfers or other dispositions closing during the period from January 1, 2015 through December 31, 2015 and (iv) 3.75 to 1.00 for sales transfers and other dispositions closing on January 1, 2016 and thereafter, and in each case 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) or (c) on a pro forma basis as though such sale, transfer or other disposition 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, transfer or other disposition, and (e) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for all such assets pursuant to this clause (vi) shall not exceed $50,000,000 in the aggregate; provided that, notwithstanding the proviso appearing at the end of the definition of “Net Cash 104 Proceeds”, all Net Cash Proceeds received by the Borrower or any and all of its Subsidiaries for all such assets pursuant to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
this clause (mvi) dispositions by the Borrower or any of its Subsidiaries of property or assets shall be subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsSection 2.06(b)(ii)(A).
Appears in 1 contract
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, assets or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
except (ai) sales of inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory in the ordinary course of its business;
, (bii) dispositions of obsolete, worn out or surplus property disposed of in a transaction authorized by Section 7.4 the ordinary course of business, (other than subsection (c) thereof);
(ciii) sales, leases, transfers or other dispositions of assets among by a wholly-owned Subsidiary of the Borrower with any other wholly-owned Subsidiary of the Borrower (provided that if such disposition is by a Subsidiary Guarantor, the recipient of such assets is also a Subsidiary Guarantor), (iv) sales, leases, transfers or other dispositions of assets by the Borrower to any wholly-owned Subsidiary Guarantor, or by any wholly-owned Subsidiary to the Borrower, (v) in a transaction authorized by subsection (c) of this Section, (vi) the disposition of Margin Stock for cash in an amount equal to the fair value of such Margin Stock on the date of such disposition, (vii) sales of assets for cash and for fair value in an aggregate amount not to exceed $1,000,000 in any year, (viii) sales, leases, transfers or other dispositions of assets by the Borrower or any Subsidiary Guarantors;
not exceeding $70,000,000 in the aggregate fair market value by contributing such assets to a joint venture; provided, however, that contributions of assets to a joint venture in which the Borrower holds less than a 50% interest shall not exceed $35,000,000 in aggregate fair value in any year, or (dix) exchanges of assets for assets of equal fair market value which do not constitute Materially Different Businesses (in each case as determined by the board of directors of the Borrower), (x) the sale of any asset not exceeding an amount equal to five percent of the Borrower's Net Tangible Assets at the time of such sale and not otherwise permitted by this subsection (d) by the Borrower or any Subsidiary of its Subsidiaries the Borrower (other than a bulk sale of inventoryinventory and a sale of receivables other than delinquent accounts for collection purposes only) so long as (i) no Event of Default shall occur and be continuing, (iiA) the purchase price paid to the Borrower or such Subsidiary for such asset shall be no less than the fair market value of such asset at the time of such sale, (iiiB) the purchase price for such asset shall be paid to the Borrower or such Subsidiary solely in cash payable at least 75% closing or instruments obligating the obligors with respect thereto to make cash and (iv) payments within one year of closing, in the aggregate fair market value amount of all such asset and all other assets sold instruments at any one time held by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not to exceed $20,000,000 in the aggregate;
10,000,000 and (eC) the sale and leaseback of (i) restaurants or restaurant properties existing as of Borrower shall prepay the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business Advances to the extent that (irequired by, and in the order of priority set forth in, Section 2.05(b)(i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (iixi) so long as no Default shall occur and be continuing, the proceeds grant of such disposition are promptly applied any option or other right to purchase any asset in a transaction which would be permitted under the purchase price provisions of such replacement capital assetsthe next preceding clause (x).
Appears in 1 contract
Samples: Credit Agreement (Laboratory Corp of America Holdings)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(a) sales of assets other than inventory in the ordinary course of its business and the granting of any option or other right to purchase, lease or otherwise acquire inventory be sold in the ordinary course of its business;, except:
(bi) sales of Inventory in the ordinary course of its business,
(ii) in a transaction authorized by Section 7.4 (other than subsection (cd)(i) thereof);or (ii) of this Section 5.02,
(ciii) sales, transfers the sale or other dispositions disposition of assets among damaged, worn out or obsolete property that is no longer necessary for the proper conduct of the business of the Borrower and Subsidiary Guarantors;its Subsidiaries in the ordinary course of business, provided that the fair value of the assets so sold or otherwise disposed of shall not exceed $1,000,000 in the aggregate in any Fiscal Year,
(div) the sale or other disposition of assets by any Loan Party to any other Loan Party,
(v) the sale of assets or properties for fair value in an aggregate amount for any asset one such transaction or series of related transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or any of its Subsidiaries for fair value and for cash or senior promissory notes or equity of the seller thereof or like-kind assets (including, without limitation, the stock of the Person owning such assets) to be used in the business of the Borrower and its Subsidiaries or any other than a bulk assets, provided that the fair value of the assets so sold or exchanged shall not exceed $25,000,000 in the aggregate in any Fiscal Year, provided further that any notes or equity or other non-cash assets received in connection with any sale or exchange of inventoryassets pursuant to this clause (vi) so long shall be pledged as (i) no Event Collateral securing the Obligations of Default shall occur and be continuing, (ii) the purchase price paid to the Borrower or such Subsidiary for such asset Subsidiary, as the case may be, under the Loan Documents and the Secured Parties' lien and security interest therein shall be no less than perfected (and the Borrower shall, and shall cause any such Subsidiary to, take such action as the Collateral Agent may deem necessary or desirable to effect such perfection) in accordance with the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment manufacturing business for fair market value of such asset at the time of such salevalue, and
(iiiviii) the purchase price for such asset shall be paid to the Borrower or such Subsidiary in at least 75% cash and (iv) the aggregate fair market value of such asset and all other assets sold lease by the Borrower and its Subsidiaries, as lessors, in the ordinary course of their respective business and the aggregate purchase price paid to the Borrower on an arm's-length basis, of real property consisting of space located in their respective bowling centers, and all of its Subsidiaries for such asset and all other assets sold leasing arrangements entered into by the Borrower and its Subsidiaries, in each case during the same fiscal year pursuant to this clause (e), shall not exceed $8,000,000, and in any event since the date of this Agreement shall not exceed $20,000,000 in the aggregate; provided that, notwithstanding the foregoing clause (iv), restaurant properties may be sold to franchisees, as long as the sales price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount business and without recourse by significant economic cost to the Borrower or any Subsidiary thereof and its Subsidiaries in order to permit the service of accounts receivable arising alcoholic beverages and gaming operations pursuant to applicable law, provided that in the ordinary course case of business in connection with the compromise sales or collection thereof;
exchanges of assets pursuant to clauses (hvi) subject to the requirements of Section 4.17and (vii) above, the disposition Borrower shall, on the date of receipt by the Borrower any Loan Party or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash Net Cash Proceeds from such sale, prepay the Advances pursuant to, and Cash Equivalents in the ordinary course amount and order of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantorpriority set forth in, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary GuarantorSection 2.06(b)(ii), and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor shall not pay more than an amount equal to the fair market value of such assets as determined at the time of such transfer)
(k) the lease, sublease, license, sublicense, abandonment, non-renewal or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to no greater than five locations granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
(m) dispositions by the Borrower or any of its Subsidiaries of property or assets subject to an insurance claim or condemnation proceeding; and
(n) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assetsspecified therein.
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Samples: Credit Agreement (Amf Bowling Inc)
Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose of (including by any sale and leaseback transaction)of, any assets, or grant any option or other right to purchase, lease or otherwise acquire, or permit any of its Subsidiaries to grant any option or other right to purchase, lease or otherwise acquire any assets, except:
(ai) sales and leases of inventory Inventory in the ordinary course of its business and business, the granting of any option or other right to purchase, lease or otherwise acquire inventory Inventory in the ordinary course of its business, leases or subleases of real 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 the absence of which would not interfere in any material respect with the ordinary conduct of business of the Borrower or any of its Subsidiaries;
(bii) in a transaction authorized by Section 7.4 5.02(d) (other than subsection (ciii) thereof);
(ciii) sales, transfers or other dispositions of assets among the Borrower and Subsidiary Guarantors;
(d) the sale of any asset by Loan Parties; provided that in no event shall the Borrower or any Guarantor sell, transfer or otherwise dispose of its Subsidiaries assets to an Excluded Subsidiary unless such transaction is permitted under Section 5.02(f)(i);
(iv) sales, transfers or other than a bulk sale dispositions of inventory) assets, so long as (i) no Event of Default shall occur and be continuing, (iiA) 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, (iiiB) the purchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in at least 75% cash cash, (C) no Default shall have occurred and be continuing or would result from any such sale, transfer or other disposition and (ivD) the aggregate fair market value of such asset and all other assets sold by the Borrower and its Subsidiaries, and the aggregate purchase price paid to the Borrower and all of its Subsidiaries for such asset and all other assets sold by the Borrower and its Subsidiaries, in each case during the same fiscal year Fiscal Year pursuant to this clause (e), iv) shall not exceed $8,000,0007,500,000;
(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 event since such sale, transfer or other disposition and (D) the date aggregate purchase price paid to the Borrower and all of its Subsidiaries for all such assets pursuant to this Agreement clause (v) shall not exceed $20,000,000 in the aggregate; provided thatand
(vi) sales, notwithstanding the foregoing clause (iv)transfers or other dispositions of assets, restaurant properties may be sold to franchisees, as so long as (A) the sales purchase price paid for any individual sale shall not exceed $5,000,000 and in any event the aggregate sales price for all such sales from and after the date of this Agreement shall not exceed $20,000,000 in the aggregate;
(e) the sale and leaseback of (i) restaurants or restaurant properties existing as of the date hereof , (ii) within 365 days after the opening day of restaurants acquired or constructed after the date hereof; (iii) after 365 days but before 24 months from the opening day of restaurants acquired or constructed after the date hereof; and (iv) after 24 months from the opening day of restaurants acquired or constructed after the date hereof; provided, that such sale and leaseback transaction is permitted under, and any proceeds are applied in accordance with, the Senior Secured Note Indenture (as in effect on the Closing Date), whether or not any Senior Secured Notes remain outstanding;
(f) the sale by the Borrower or any of its Subsidiaries of obsolete, worn-out, damaged, unusable or surplus assets no longer used in the business of the Borrower or any of its Subsidiaries in the ordinary course of business;
(g) the sale or discount without recourse by the Borrower or any Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(h) subject to the requirements of Section 4.17, the disposition by the Borrower or any of its Subsidiaries of any Swap Agreement;
(i) dispositions by Holdings or any of its Subsidiaries of investments in cash and Cash Equivalents in the ordinary course of business;
(i) any Subsidiary Guarantor may transfer assets to the Borrower or any other Subsidiary Guarantor, (ii) Holdings may transfer assets (other than Capital Stock of the Borrower) to the Borrower or any other Subsidiary Guarantor, and (iii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may transfer assets to the Borrower or any Subsidiary Guarantor (provided that, in connection with any such transfer, the Borrower or such Subsidiary Guarantor for any such asset and related assets shall not pay more be no less than an amount equal to the fair market value of such asset and related assets as determined at the time of such transfer)
sale, transfer or disposition, (kB) the leasepurchase price for any such asset and related assets shall be paid to the Borrower or such Subsidiary solely in cash, sublease(C) no Default shall have occurred and be continuing or would result from any such sale, licensetransfer or other disposition, sublicense(D) immediately after giving effect to such sale, abandonmenttransfer or other disposition, non-renewal the pro forma Leverage Ratio at the time of such sale, transfer or other disposition of intellectual property in the ordinary course of business consistent with past practice;
(l) leases, subleases, licenses or sublicenses of real or personal property with respect to shall be no greater than five locations granted 3.75 to 1.00, 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) or (c) on a pro forma basis as though such sale, transfer or other disposition 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, transfer or other disposition, and (E) the aggregate purchase price paid to the Borrower and all of its Subsidiaries for all such assets pursuant to this clause (vi) shall not exceed $50,000,000 in the aggregate; provided that, notwithstanding the proviso appearing at the end of the definition of “ Net Cash Proceeds”, all Net Cash Proceeds received by the Borrower or any and all of its Subsidiaries for all such assets pursuant to others in the ordinary course of business not interfering in any material respect with the business of Borrower or any of its Subsidiaries;
this clause (mvi) dispositions by the Borrower or any of its Subsidiaries of property or assets shall be subject to an insurance claim or condemnation proceeding; and
(nSection 2.06(b)(ii)(A) dispositions by the Borrower or any of its Subsidiaries of capital assets in the ordinary course of business to the extent that (i) such capital assets are promptly exchanged for credit against the purchase price of similar replacement capital assets and (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement capital assets.
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