Sales of Assets, Etc. Such Obligor will not, and will not permit any of its Subsidiaries to, sell, lease, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any of its Property (including accounts receivable and capital stock of Subsidiaries) to any Person in one transaction or series of transactions (any thereof, an “Asset Sale”), except: (a) transfers of cash in the ordinary course of its business for equivalent value; (b) sales of inventory in the ordinary course of its business on ordinary business terms; (c) development and other collaborative arrangements where such arrangements provide for the licenses or disclosure of Patents, Trademarks, Copyrights or other Intellectual Property rights in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of time; provided that each such license does not effect a legal transfer of title to such Intellectual Property rights and that each such license must be a true license as opposed to a license that is a sales transaction in substance; (d) (i) transfers of Property by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor to another Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor; (e) dispositions of any Property that is surplus, obsolete or worn out or no longer used or useful in the Business; (f) any transaction or disposition permitted under Section 9.02, 9.03, 9.05 or 9.06; and (g) (i) licenses entered into in the ordinary course of business of Intellectual Property or other property owned by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided that, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substance; (h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business; (i) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i); (j) Asset Sales resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event not to exceed one hundred eighty (180) days) applied to replace such assets; (k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment; (l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction; and (m) the disposition of other property in an aggregate amount not to exceed $1,000,000.
Appears in 1 contract
Samples: Term Loan Agreement (Synergy Pharmaceuticals, Inc.)
Sales of Assets, Etc. Such Obligor will The Obligors shall not, and will shall not permit any of its their Subsidiaries to, to sell, lease, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any of its Property assets or property (including accounts receivable and capital stock receivable, Intellectual Property or Equity Interests of Subsidiaries) ), or forgive, release or compromise any amount owed to any Person Obligor or any of their Subsidiaries, in each case, in one transaction or series of transactions (any thereof, an “Asset Sale”), except:
(a) transfers of cash in the ordinary course of its business for equivalent value;
(b) sales of inventory in the ordinary course of its business on ordinary business terms;
(cb) development and other collaborative arrangements where such arrangements provide for the licenses forgiveness, release or disclosure compromise of Patents, Trademarks, Copyrights any amount owed to any Obligor or other Intellectual Property rights Subsidiary in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of time; provided that each such license does not effect a legal transfer of title business;
(c) outbound licenses permitted pursuant to such Intellectual Property rights and that each such license must be a true license as opposed to a license that is a sales transaction in substanceSection 9.13;
(d) (i) transfers of Property assets or property (other than Material Intellectual Property) by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor to another Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(e) dispositions (including by way of abandonment) of any Property assets or property (other than any Material Intellectual Property) that is surplus, obsolete or worn out or no longer used or useful in the Businessfor Product Commercialization or Development Activities;
(f) in connection with any transaction or disposition permitted under Section 9.02, 9.03, 9.05 Sections 9.03 or 9.06; and;
(g) (i) licenses entered into the use of cash and Permitted Cash Equivalent Investments in the ordinary course of business of Intellectual Property or in connection with other property owned business activities not prohibited or otherwise restricted hereby or by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided that, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substanceLoan Document;
(h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business;
(i) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i);
(j) Asset Sales resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event not to exceed one hundred eighty (180) days) applied to replace such assets;
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof thereof;
(i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property;
(j) any Casualty Event that would constitute an Asset Sale;
(k) (i) dispositions consisting of the sale, transfer, assignment, licensing (including exclusive licenses) or other disposition of any Obligor Intellectual Property that does not qualify as Material Intellectual Property, and (ii) dispositions consisting of the licensing (including exclusive licenses) of Material Intellectual Property exclusively outside of the United States;
(l) (i) dispositions and licenses of Finacea IP entered into on an arm’s–length basis on commercially reasonable terms, and (ii) any forgiveness, release or compromise of any amount owed solely in respect of the ordinary course Finacea IP that is made in connection with any settlement of business and not as part of a financing transactionANDA litigation related solely to the Finacea IP; and
(m) other Asset Sales outside the disposition of other property in an aggregate amount ordinary course not to exceed $1,000,0001,000,000 in the aggregate since the Closing Date.
Appears in 1 contract
Sales of Assets, Etc. Such Obligor will not, and will not permit any of its Subsidiaries to, sell, lease, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any of its Property (including accounts receivable and capital stock of Subsidiaries) to any Person in one transaction or series of transactions (any thereof, an “Asset Sale”), except:
(a) transfers of cash for equivalent value and inventory in the ordinary course of its business business, including the transfer of nCounter systems to collaborators as compensation for equivalent valueservices rendered in the ordinary course of business;
(b) sales sales, loans or leases of inventory in the ordinary course of its business on ordinary business termsterms (including reagent rental agreements);
(c) development and other collaborative arrangements where such arrangements provide for the licenses or disclosure of Patents, Trademarks, Copyrights or other Intellectual Property rights in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of time; provided that each such license does not effect a legal transfer of title to such Intellectual Property rights and that each such license must be a true license as opposed tangible property transfers to a license that is a sales transaction in substancePermitted Commercialization Arrangement Vehicle but subject to the monetary limit on Investments as described under Section 9.05(k);
(d) (i) transfers of Property by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor to another Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;; [†] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
(e) dispositions of any Property that is surplus, obsolete or worn out or no longer used or useful in the Business;
(f) any transaction placements of specialized equipment for manufacturing, with a fair market value not to exceed the sum of $3,000,000 in the aggregate, with foreign or disposition permitted under Section 9.02domestic contract manufacturers where Borrower retains title to such equipment and maintains the Lenders’ Lien on such equipment (such Lien being acknowledged by such manufacturer) with a right to recover the equipment; provided that notwithstanding Sections 8.12(c) and 8.16(b), 9.03, 9.05 Borrower shall be solely responsible for paying (or 9.06; andreimbursing Lenders) for all legal and filing costs relating to the creation and maintenance of Lenders’ Lien on such Property in foreign jurisdictions.
(g) (i) licenses entered into in the ordinary course of business of Intellectual Property or other property owned by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided that, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substance;
(h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business;
(i) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i);
(j) Asset Sales resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event not to exceed one hundred eighty (180) days) applied to replace such assets;
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction;
(h) dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are applied to the purchase price of such replacement property within 180 days;
(i) dispositions resulting from casualty events;
(j) non-exclusive licenses of Borrower’s and its Subsidiaries’ Intellectual Property;
(k) licenses for the use of the Intellectual Property of Borrower or its Subsidiaries (but not to any of Borrower’s other Affiliates, except for a Permitted Commercialization Arrangement Vehicle) that are approved by Borrower’s Board of Directors and which would not result in a legal transfer of title of the licensed property but that may be exclusive (i) in respects other than territory (such as field of use or scope) and (ii) as to territory, only as to discrete areas outside of the United States; andprovided that any such license of such Intellectual Property covering the Product may be exclusive only as to territory and only as to discrete areas outside of the United States;
(l) exclusive and non-exclusive licenses covering nCounter Elements or diagnostic gene content other than for nCounter-based Prosigna™ Breast Cancer Prognostic Gene Signature Assay; (m) the disposition of other property in an aggregate amount not to exceed $1,000,000.any transaction permitted under Section 9.02, 9.03, 9.05 or 9.06;
Appears in 1 contract
Sales of Assets, Etc. Such Obligor will The Obligors shall not, and will shall not permit any of its their Subsidiaries to, to sell, lease, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any of its Property their assets or properties (including accounts receivable and capital stock receivable, Intellectual Property or Equity Interests of Subsidiaries) ), forgive, release or compromise any amount owed to any Person Obligor or any such Subsidiary, in each case, in 90 ny-2687469 one transaction or series of transactions (any thereof, an “Asset Sale”), except:
except for the following (provided that, in the case of any Asset Sale of the type described in clauses (c) or (i) below, the Obligors shall not, and shall not permit any of their Subsidiaries to, allow any such Asset Sale to occur if any Event of Default has occurred and is continuing or would reasonably be expected to occur as a result of such Asset Sale): (a) transfers of cash in the ordinary course of its business for equivalent value;
(b) sales of inventory in the ordinary course of its business on ordinary business terms;
; (cb) development and other collaborative arrangements where such arrangements provide for the licenses forgiveness, release or disclosure compromise of Patents, Trademarks, Copyrights any amount owed to an Obligor or other Intellectual Property rights any of its Subsidiaries in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of timebusiness; provided that each such license does not effect a legal transfer of title to such Intellectual Property rights and that each such license must be a true license as opposed to a license that is a sales transaction in substance;
(d) (ic) transfers of Property assets or properties (other than any Material Intellectual Property) by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor or any of its Subsidiaries to another Subsidiary Obligor (other than Cortendo and any Person that is not required to become a Subsidiary Guarantor, Guarantor but has not yet done so within the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and time periods set forth in Section 8.12(a)); (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(ed) dispositions of any Property asset or properties (including leaseholders, but other than any Material Intellectual Property) that is surplus, obsolete or worn out or no longer used or useful in the Business;
; (e) as expressly permitted under Sections 9.03 or 9.05; (f) any transaction or disposition permitted under Section 9.02, 9.03, 9.05 or 9.06; and
(g) (i) licenses entered into the use of cash and Permitted Cash Equivalent Investments in the ordinary course of business of Intellectual Property or in connection with other property owned business activities not prohibited or otherwise restricted hereby or by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided that, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substance;
(h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business;
(i) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i);
Loan Document; (j) Asset Sales resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event not to exceed one hundred eighty (180) days) applied to replace such assets;
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(lg) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof thereof; (h) dispositions of any asset or property (other than Material Intellectual Property) to the extent that such asset or property is exchanged for credit against the purchase price of similar replacement property; (i) any license of Intellectual Property to the extent permitted by Section 9.18; (j) any Casualty Event that would constitute an Asset Sale; (k) the lapse or abandonment of any registrations or applications for registration of any Intellectual Property (other than Material Intellectual Property) no longer used or useful in the ordinary course conduct of the business and of the Obligors or their Subsidiaries to the extent no longer economically desirable in the conduct of their business; (l) the sale of Qualified Equity Interests of Parent (to the extent not as part resulting in a Change of a financing transactionControl or other Event of Default); and
(m) the disposition of other property in an aggregate amount not to exceed $1,000,000.
Appears in 1 contract
Sales of Assets, Etc. Such Obligor will The Borrower shall not, and will shall not permit any of its Subsidiaries to, sell, lease, exclusively license (in terms of geography or field of use)license, transfer, transfer or otherwise dispose of any of its Property assets or properties (including accounts receivable receivable, Intellectual Property and capital stock Equity Interests of Subsidiaries) ), whether now owned or existing or hereafter acquired or arising, grant or enter into any Exclusive License, or forgive, release or compromise any amount owed to any Person the Borrower or such Subsidiary, in each case, in one transaction or series of transactions (any thereof, an “Asset Sale”); provided that, exceptnotwithstanding the forgoing, (i) Asset Sales of the type described in clauses (b) and (d) set forth below shall be permitted hereunder so long as no Event of Default has occurred and is continuing or could reasonably be expected to result therefrom and (ii) all other Asset Sales of the types described in the other clauses set forth below shall be permitted hereunder:
(a) transfers of cash in the ordinary course of its business for equivalent value;
(b) sales of inventory in the ordinary course of its business on ordinary business terms;
(cb) development and other collaborative arrangements where such arrangements provide for the licenses forgiveness, release or disclosure compromise of Patents, Trademarks, Copyrights any amount owed to the Borrower or other Intellectual Property rights to any of its Subsidiaries in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a business; provided that, in any period of time; provided twelve (12) consecutive months, the aggregate amount forgiven, released or compromised shall not exceed $150,000.
(c) Asset Sales that each such license does not effect a legal transfer of title constitute outbound licenses permitted pursuant to such Intellectual Property rights and that each such license must be a true license as opposed to a license that is a sales transaction in substanceSection 9.13(b);
(d) (i) transfers of Property property (other than Material Intellectual Property) by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor to another Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(e) dispositions of any Property property that is surplus, obsolete or worn out or no longer used or useful in the Businesssuch Person’s business;
(f) in connection with any transaction or disposition permitted under Section 9.02, 9.03, 9.05 9.03 or 9.069.05; and
(g) (i) licenses entered into in the ordinary course other transfers of business of Intellectual Property property or other property owned by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided that, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substance;
(h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business;
(i) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i);
(j) Asset Sales resulting from any casualty or (other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event than Material Intellectual Property) not to exceed one hundred eighty One Hundred Fifty Thousand Dollars (180$150,000) days) applied to replace such assets;
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction; and
(m) aggregate since the disposition of other property in an aggregate amount not to exceed $1,000,000Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Neuronetics, Inc.)
Sales of Assets, Etc. Such Obligor will not, and will not permit any of its Subsidiaries to, sell, lease, exclusively license (in terms of geography or field of use)license, transfer, transfer or otherwise dispose of any of its Property property (including accounts receivable and capital stock Equity Interests of Subsidiaries) ), or forgive, release or compromise any amount owed to any Person such Obligor or Subsidiary, in each case, in one transaction or series of transactions (any thereof, an “Asset Sale”), except:
(a) transfers of cash in the ordinary course of its business for equivalent value;
(b) sales of inventory in the ordinary course of its business on ordinary business terms;
(cb) development and the forgiveness, release or compromise of any amount owed to any other collaborative arrangements where such arrangements provide for the licenses or disclosure of Patents, Trademarks, Copyrights or other Intellectual Property rights Obligor in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of time; provided business;
(c) Asset Sales that each such license does not effect a legal transfer of title constitute outbound licenses permitted pursuant to such Intellectual Property rights and that each such license must be a true license as opposed to a license that is a sales transaction in substanceSection 9.13(b);
(d) (i) transfers of Property property by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor to another Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(e) dispositions of any Property property that is surplus, obsolete or worn out or no longer used or useful in the Business;
(f) in connection with any transaction or disposition permitted under Section 9.02, 9.03, 9.05 9.03 or 9.06; and9.05;
(g) dispositions of equipment to the extent that such equipment is simultaneously exchanged for credit against the purchase price of replacement equipment;
(ih) licenses entered into dispositions for cash of past due accounts receivable in the ordinary course of business of Intellectual Property or other property owned by Borrower or (including any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (iidiscount and/or forgiveness thereof) licenses entered into or, in the ordinary course case of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided thataccounts receivable in default, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substance;
(h) non-exclusive licenses of Intellectual Property entered into in connection with the ordinary course of businesscollection or compromise thereof;
(i) any other Asset Sale, the Asset Sale Proceeds dispositions of which are applied as required under Section 3.03(b)(i)non-core assets acquired pursuant to a Permitted Acquisition;
(j) Asset Sales resulting dispositions not otherwise permitted hereunder which are made for fair market value; provided that (i) not less than seventy five percent (75%) of the aggregate sales price from any casualty or other insured damage tosuch disposition shall be paid in cash and (ii) the aggregate fair market value of all assets so sold by the Borrower and its Domestic Subsidiaries, or any taking under power of eminent domain or by condemnation or similar proceeding oftogether, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and shall not exceed in any event not to exceed one hundred eighty (180) days) applied to replace such assets;fiscal year $500,000 in the aggregate; and
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of pursuant to a financing transactiontransaction permitted pursuant to Section 9.01(h); and
provided that, no Asset Sale otherwise permitted by clauses (mi) the disposition or (j) of other property in an aggregate amount not this Section 9.09 shall be made or assumed if a Default has occurred and is then continuing or could reasonably be expected to exceed $1,000,000result therefrom.
Appears in 1 contract
Samples: Credit Agreement (Sonendo, Inc.)
Sales of Assets, Etc. Such Obligor will not, and will not permit any of its Subsidiaries to, sell, lease, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any of its Property (including accounts receivable and capital stock of Subsidiaries) to any Person in one transaction or series of transactions (any thereof, an “Asset Sale”), except:
(a) transfers of cash in the ordinary course of its business for equivalent value;
(b) sales of inventory in the ordinary course of its business on ordinary business terms;
(c) development and other collaborative arrangements where such arrangements provide for the licenses or disclosure of Patents, Trademarks, Copyrights or other Intellectual Property rights in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of time; provided that each such license does not effect a legal transfer of title to such Intellectual Property rights and that each such license must be a true license as opposed to a license that is a sales transaction in substance;
(d) (i) transfers of Property by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary Obligor to any Obligor on arm’s length terms or for reasonably equivalent valueother Obligor, (iii) transfers of Property, by any Obligor to another a Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(e) dispositions of any Property that is surplus, obsolete or worn out or no longer used or useful in the Business;
(f) any transaction or disposition permitted under Section 9.02, 9.03, 9.05 or 9.06; and
(gf) (i) licenses entered into in the ordinary course of business of Intellectual Property or other property owned by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and States, (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary, and (iii) any license (whether or not exclusive) of all or any portion of the oncology business of Borrower and its Subsidiaries, including any assets reasonably related thereto; provided that, in the case of each caseof the foregoing clauses (i) through (iii), such licenses license does not effect a legal transfer of title to such Intellectual Property rights and that each such license must be a true licenses license as opposed to licenses a license that are is a sales transactions transaction in substance;; 164703839 v7
(hg) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business;
(ih) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i3.03(b)(ii);
(i) dispositions of any Property that is surplus, obsolete or worn out or no longer used or useful in the Business;
(j) Asset Sales resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event not to exceed one hundred eighty (180) days) applied to replace such assets;
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction; and
(m) the disposition of other property in an aggregate amount not to exceed $1,000,000.
Appears in 1 contract
Sales of Assets, Etc. Such Obligor Unless Borrower simultaneously makes the prepayment required under Section 3.03(b)(i), Borrower will not, and will not permit any of its Subsidiaries to, sell, lease, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any of its Property (including accounts receivable and capital stock of Subsidiaries) to any Person in one transaction or series of transactions (any thereof, an “Asset Sale”), exceptexcept for any of the following:
(a) transfers of cash for equivalent value and inventory in the ordinary course of its business business, including the transfer of nCounter systems to collaborators as compensation for equivalent valueservices rendered in the ordinary course of business;
(b) sales sales, loans or leases of inventory in the ordinary course of its business on ordinary business termsterms (including reagent rental agreements);
(c) development and other collaborative arrangements where such arrangements provide for the licenses or disclosure of Patents, Trademarks, Copyrights or other Intellectual Property rights in the ordinary course of business and consistent with general market practices where such license requires periodic payments based on per unit sales of a product over a period of time; provided that each such license does not effect a legal transfer of title to such Intellectual Property rights and that each such license must be a true license as opposed tangible property transfers to a license that is a sales transaction in substancePermitted Commercialization Arrangement Vehicle but subject to the monetary limit on Investments as described under Section 9.05(k);
(d) (i) transfers of Property by any Subsidiary to any Obligor, (ii) transfers of Property by any Subsidiary to any Obligor on arm’s length terms or for reasonably equivalent value, (iii) transfers of Property, by any Obligor to another Subsidiary that is not a Subsidiary Guarantor, the aggregate fair market value of which does not cause the Intercompany Basket to be exceeded, and (iv) transfers of Property by any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(e) dispositions of any Property that is surplus, obsolete or worn out or no longer used or useful in the Business;
(f) any transaction placements of specialized equipment for manufacturing, with a fair market value not to exceed the sum of $3,000,000 in the aggregate, with foreign or disposition permitted under domestic contract manufacturers where Borrower retains title to such equipment and maintains the Lenders’ Lien on such equipment (such Lien being acknowledged by such manufacturer) with a right to recover the equipment; provided that notwithstanding Section 9.028.12(c) and 8.16(b), 9.03, 9.05 Borrower shall be solely responsible for paying (or 9.06; andreimbursing Lenders) for all legal and filing costs relating to the creation and maintenance of Lenders’ Lien on such Property in foreign jurisdictions.
(g) (i) licenses entered into in the ordinary course of business of Intellectual Property or other property owned by Borrower or any Subsidiary which may only be exclusive with respective to geographical location outside the United States and (ii) licenses entered into in the ordinary course of business of Intellectual Property or other property (excluding Intellectual Property or other property relating to the Product) owned by Borrower or any Subsidiary; provided that, in each case, such licenses must be true licenses as opposed to licenses that are sales transactions in substance;
(h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business;
(i) any other Asset Sale, the Asset Sale Proceeds of which are applied as required under Section 3.03(b)(i);
(j) Asset Sales resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or assets of Borrower or any Subsidiary, provided that, the proceeds thereof are promptly (and in any event not to exceed one hundred eighty (180) days) applied to replace such assets;
(k) the abandonment or other disposition of Obligor Intellectual Property that is no longer useful or material to the conduct of the business of Borrower and its Subsidiaries as determined by Borrower in its reasonable business judgment;
(l) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction;
(h) dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are applied to the purchase price of such replacement property within 180 days;
(i) dispositions resulting from casualty events;
(j) non-exclusive licenses of Borrower’s and its Subsidiaries’ Intellectual Property;
(k) licenses for the use of the Intellectual Property of Borrower or its Subsidiaries (but not to any of Borrower’s other Affiliates, except for a Permitted Commercialization Arrangement Vehicle) that are approved by Borrower’s Board of Directors and which would not result in a legal transfer of title of the licensed property but that may be exclusive (i) in respects other than territory (such as field of use or scope) and (ii) as to territory, only as to discrete areas outside of the United States; provided that any such license of such Intellectual Property covering the Product may be exclusive only as to territory and only as to discrete areas outside of the United States;
(l) exclusive and non-exclusive licenses covering nCounter Elements or diagnostic gene content other than for nCounter-based Prosigna™ Breast Cancer Prognostic Gene Signature Assay;
(m) any transaction permitted under Section 9.03 or 9.05; and
(mn) the disposition of other property in an aggregate amount not to exceed $1,000,000250,000 in any single year.
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