Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) any of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.
Appears in 2 contracts
Samples: Loan and Security Agreement (Eventbrite, Inc.), Loan and Security Agreement (Eventbrite, Inc.)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Material Subsidiaries shall consummate any Asset Sale, except:
(i) non-exclusive licenses, sublicenses, leases licenses or subleases of Intellectual Property in the ordinary course of business and which do sublicenses (but not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory any licensing rights) by the Company or collateral in the ordinary course its Material Subsidiaries of business software, customer lists, trademarks, service marks, patents, trade names and goods held for sale copyrights and other intellectual property in the ordinary course of business; provided, that such licenses or sublicenses shall not interfere with the business of the Company or any such Material Subsidiary;
(ixii) the sale or discount without recourse of accounts receivable arising disposition in the ordinary course of business of equipment that is obsolete, excess or no longer used or useful in connection with the compromise Company's or collection thereof; its Material Subsidiaries' businesses;
(xiii) the sale transfers of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements assets between the joint venture parties set forth in joint venture arrangements Company and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly wholly-owned Material Subsidiary of Borrower that the Company or between wholly-owned Material Subsidiaries of the Company not otherwise prohibited by this Agreement; and
(iv) sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for consideration consisting at least seventy-five percent (75%) of cash, (b) is for not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate less than fair market value (as determined in good faith by the Company's board of directors), and (c) when combined with all such other transactions (each such transaction being valued at net book value) (i) during the immediately preceding twelve-month period, represents the disposition of not greater than $1,500,000 of the Company's Consolidated Tangible Assets determined as at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the date of such Transfers proposed transaction, represents the disposition of not greater than $2,400,000; ; provided that it shall not constitute an Event of Default under this section 10.3(b) if such sale or other transfer of assets results in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeara Change of Control and the Company offers to prepay the Notes of all holders pursuant to section 8.3 and the Company prepays the Notes of all holders who elect to accept the Company's offer to prepay the Notes.
Appears in 2 contracts
Samples: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp), Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(ia) non-exclusive licenseslicenses or sublicenses by the Company or its Subsidiaries of software, sublicensescustomer lists, leases or subleases of Intellectual Property in the ordinary course of business trademarks, service marks, patents, trade names and which do not materially interfere with the business of the Borrower copyrights and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; provided, that such licenses or sublicenses shall not interfere with the business of the Company or any such Subsidiary;
(ixb) transfers of assets between the sale Company and any wholly-owned Subsidiary of the Company or discount without recourse between wholly-owned Subsidiaries of accounts receivable arising the Company not otherwise prohibited by this Agreement; provided, that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time; and
(c) sales, assignments, transfers leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the ordinary course Company’s board of business directors), and (b) when combined with all such other transactions (each such transaction being valued at book value) (i) during the immediately preceding twelve-month period, represents the disposition of not greater than fifteen percent (15%) of the Company’s Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the date hereof to the date of such proposed transaction, represents the disposition of not greater than twenty-five percent (25%) of the Company’s Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into; and
(d) sales in connection with the compromise reorganization, restructuring and rationalization of the Company and its Subsidiaries; provided that the non-recurring expenses arising from such reorganization, restructuring and rationalization which are charged to operating expenses are charged during the first three (3) fiscal years following any Permitted Acquisition and do not exceed $5,000,000, on a pre-tax basis, with respect to any Permitted Acquisition, or collection thereof; (x) $10,000,000, on a pre-tax basis, in the sale of property aggregate. An amount equal to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting Net Proceeds received from any settlement of, Asset Sale shall be used to prepay or payment in respect retire Senior Debt of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with the Company and/or its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other TransfersRestricted Subsidiaries, provided that the aggregate fair market value Company shall comply with the provisions of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection 8.7 hereof.
Appears in 2 contracts
Samples: Note Purchase and Private Shelf Agreement (Schawk Inc), Note Purchase Agreement (Schawk Inc)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Significant Subsidiaries shall consummate any Asset Sale, except:
(i) nontransfers of assets between the Company and any wholly-exclusive licenses, sublicenses, leases owned Subsidiary of the Company or subleases between wholly-owned Subsidiaries of Intellectual Property the Company not otherwise prohibited by this Agreement;
(ii) sales of inventory in the ordinary course of business;
(iii) the disposition in the ordinary course of business of equipment or property that is obsolete, excess, or no longer necessary, used or useful in the Company’s or any Subsidiary’s business or of any asset in exchange for, or the proceeds of which shall be used to acquire, any replacement asset necessary or useful in the business of the Company or any Subsidiary;
(iv) sales, transfers or assignments of Receivables in connection with receivables purchase facilities; provided, that the aggregate amount of Receivables Facility Attributed Indebtedness arising in connection therewith does not exceed amounts permitted under Section 7.3(A)(xiv);
(v) sales, transfers and which other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof consistent with past practice or other customary or reasonable business practices;
(vi) sales, transfers, leases and other dispositions of property that are (x) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business, (y) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with the Company or any Subsidiary (including in connection with an acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger or (z) another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Subsidiary, unless all Equity Interests in such Subsidiary are sold);
(vii) leases entered into in the ordinary course of business, and sale and leaseback transactions, in each case, to the extent that they do not materially interfere with the business of the Borrower Company and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of Subsidiaries and the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers assets and the related Indebtedness under any resulting Capitalized Lease would otherwise be permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); ;
(viii) the sale sales, transfers, licenses or sublicenses of inventory or collateral in the ordinary course of business and goods held for sale intellectual property in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property , to the extent that they do not materially interfere with the business of the Company and its Subsidiaries;
(Aix) such property is exchanged for credit against the purchase price dispositions resulting from any casualty or other damage to, or any taking under power of eminent domain or by condemnation or similar replacement proceeding of, any property or asset of the Company or any Subsidiary; and
(Bx) the contributions of assets constituting Investments in Joint Ventures that would otherwise be permitted under Section 7.3(D)(xi) and for which no cash proceeds of such Transfer are promptly applied to the purchase price of such replacement propertyreceived; and
(xi) Transfers sales, assignments, transfers, leases, conveyances or other dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; other assets if such transaction (xiia) Transfers of Borrower’s cash or cash equivalents is for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate less than fair market value (as determined in good faith by the Company’s management or board of directors) and (b) when combined with all such Transfers in reliance on other transactions pursuant to this clause Section 7.3(B)(xi) (xvieach such transaction being valued at book value) does not exceed $1,000,000 in any during the then current fiscal year, represents the disposition of assets with an aggregate book value not greater than 15% of the aggregate book value of Consolidated Assets as of the end of the immediately preceding fiscal year. If the proceeds resulting from an Asset Sale are used by the Company or the applicable Subsidiary within 180 days of the date on which such proceeds arose to acquire property useful in such Person’s business, then, only for purposes of determining compliance with this Section 7.3(B)(xi), such Asset Sale shall not be included in such determination.
Appears in 2 contracts
Samples: Credit Agreement (Woodward, Inc.), Credit Agreement (Woodward, Inc.)
Sales of Assets. SellThe Company will not, transferand will not permit any Restricted Subsidiary to, leasesell, license lease or otherwise dispose of any substantial part (as defined below) of the assets of the Company and its Restricted Subsidiaries; provided, however, that the Company or any Restricted Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Company and its Restricted Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “Transfer”substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire operating assets used or useful in carrying on the business of Borrower’s the Company and its Restricted Subsidiaries and having a value at least equal to the value of such assets except sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Debt of the Company and/or its Restricted Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of the Make-exclusive licensesWhole Amount, sublicensesif any. Any offer of prepayment of the Notes pursuant to this Section 10.4 shall be given to each holder of the Notes by written notice that shall be delivered not less than fifteen (15) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date, leases (ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than five (5) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment. The Company shall prepay on the prepayment date the Ratable Portion of Notes held by each holder that has accepted such offer, together with accrued interest thereon. As used in this Section 10.4, a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Restricted Subsidiaries during the period beginning on the first day of the 12th complete calendar month preceding the date of such sale, lease or other disposition and ending on such date, exceeds 10% of the book value of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Company and its Restricted Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-out, obsolete assets from the Company to any Restricted Subsidiary or surplus property (each as determined by Borrower in its reasonable judgment); from any Restricted Subsidiary to the Company or a Restricted Subsidiary and (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the any sale or other disposition transfer of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in property acquired by the conduct of its business (including allowing any registrations Company or any applications for registration Restricted Subsidiary after the date of this Agreement to any intellectual Person within 365 days following the acquisition or construction of such property to lapse by the Company or go abandoned); (viii) any Restricted Subsidiary if the sale of inventory Company or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the a Restricted Subsidiary shall concurrently with such sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) transfer, lease such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearlessee.
Appears in 2 contracts
Samples: Note Purchase Agreement (Dentsply International Inc /De/), Note Purchase Agreement (Dentsply International Inc /De/)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Material Subsidiaries shall consummate any Asset Sale, except:
(i) non-exclusive licenses, sublicenses, leases licenses or subleases of Intellectual Property in the ordinary course of business and which do sublicenses (but not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory any licensing rights) by the Company or collateral in the ordinary course its Material Subsidiaries of business software, customer lists, trademarks, service marks, patents, trade names and goods held for sale copyrights and other intellectual property in the ordinary course of business; provided, that such licenses or sublicenses shall not interfere with the business of the Company or any such Material Subsidiary;
(ixii) the sale or discount without recourse of accounts receivable arising disposition in the ordinary course of business of equipment that is obsolete, excess or no longer used or useful in connection with the compromise Company's or collection thereof; its Material Subsidiaries' businesses;
(xiii) the sale transfers of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements assets between the joint venture parties set forth in joint venture arrangements Company and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly wholly-owned Material Subsidiary of Borrower that the Company or between wholly-owned Material Subsidiaries of the Company not otherwise prohibited by this Agreement; and
(iv) sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for consideration consisting at least seventy-five percent (75%) of cash, (b) is for not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate less than fair market value (as determined in good faith by the Company's board of directors), and (c) when combined with all such other transactions (each such transaction being valued at net book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than $1,500,000 of the Company's Consolidated Tangible Assets determined as at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the date of such Transfers proposed transaction, represents the disposition of not greater than $2,400,000; provided that it shall not constitute an Event of Default under this section 10.3(b) if such sale or other transfer of assets results in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeara Change of Control and the Company offers to prepay the Notes of all holders pursuant to section 8.3 and the Company prepays the Notes of all holders who elect to accept the Company's offer to prepay the Notes.
Appears in 2 contracts
Samples: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp), Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Sales of Assets. SellThe Company shall not, transfer, lease, license or otherwise dispose of (a “Transfer”) and shall not permit any of Borrower’s assets except its Subsidiaries to, consummate any Asset Sale, except:
(i) transfers of assets (a) between the Company and any Wholly-Owned Subsidiary, (b) between Wholly-Owned Subsidiaries or (c) from any non-exclusive licensesWholly Owned Subsidiary to the Company or any other Subsidiary; provided, sublicensesthat any such transfer of assets from an Obligor to a Non-Obligor Subsidiary shall be made for not less than fair market value (as determined in good faith by the Company’s management or board of directors);
(ii) any Asset Sales set forth on Schedule 7.3(B);
(iii) any Asset Sale which (a) is for not less than fair market value (as determined in good faith by the Company’s management or board of directors) and (b) when combined with all such other Asset Sales (each such Asset Sale being valued at book value) during such fiscal year, leases or subleases represents the disposition of Intellectual Property assets with an aggregate book value not greater than twenty percent (20%) of the aggregate book value of the Company’s Consolidated Assets as of the end of the immediately preceding fiscal year; provided that such percentage shall be increased to twenty-five percent (25%) to the extent any Asset Sales in excess of 20% consist of sales of Non-Core Assets.
(iv) dispositions in the ordinary course of business of cash and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; Cash Equivalents;
(v) Transfers permitted Asset Sales in Section 6.6 hereunder; respect of any property or casualty insurance claim or any condemnation proceeding relating to any property of the Company or any of its Subsidiaries;
(vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers Asset Sales of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(xiivii) Transfers Asset Sales of Borrower’s cash accounts receivables in connection with the collection or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearcompromise thereof.
Appears in 2 contracts
Samples: Credit Agreement (Kaydon Corp), Credit Agreement (Kaydon Corp)
Sales of Assets. SellNeither the Company nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of any property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(a “Transfer”a) any sales of Borrower’s assets except inventory in the ordinary course of business;
(ib) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property the disposition in the ordinary course of business and which do of equipment that is obsolete, excess or no longer used or useful in the Company’s or its Subsidiaries’ businesses;
(c) any Permitted Receivables Transfer in connection with a Permitted Receivables Facility;
(d) sales, transfers or other dispositions of property to the Company or a Subsidiary Guarantor; and
(e) sales, transfers or other dispositions of property of a Subsidiary that is not materially interfere with a Subsidiary Guarantor to another Subsidiary that is not a Subsidiary Guarantor;
(f) the business of the Borrower Company and its SubsidiariesSubsidiaries may enter into, taken as a wholeterminate or modify leases, provided that such subleases, licenses and sublicenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus technology and other property (each as determined by Borrower in its reasonable judgment); (iiiA) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) between or among any Loan Parties and any of their Subsidiaries (or any combination thereof);
(g) the proceeds sale, transfer or other disposition of such Transfer patents, trademarks, copyrights and other intellectual property which, in the reasonable judgment of the Company or any of its Subsidiaries, are promptly applied determined to be uneconomical, negligible, unused or obsolete in the purchase price conduct of such replacement propertybusiness;
(h) the Company and its Subsidiaries may incur Liens permitted under Section 6.03; and
(xii) Transfers sales, assignments, transfers, leases, conveyances or other dispositions of Investments in joint ventures to the extent required by, or made other assets (other than pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; clauses (xiia) Transfers of Borrower’s cash or cash equivalents through (h) above) if such transaction (i) is for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement ofless than fair market value, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xviii) when combined with all such other Transfers, provided transactions (each such transaction being valued at book value) occurring during the fiscal year in which such proposed transaction occurred represents the disposition of not greater than fifteen percent (15%) of the Company’s Consolidated Assets (such Consolidated Assets being calculated for the end of the fiscal year immediately preceding that the aggregate fair market value of in which such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction is proposed to be entered into).
Appears in 2 contracts
Samples: Credit Agreement (EDGEWELL PERSONAL CARE Co), Credit Agreement (EDGEWELL PERSONAL CARE Co)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Borrower nor any of Borrower’s assets except (i) non-exclusive licensesits Subsidiaries shall consummate any Asset Sale, sublicenses, leases or subleases of Intellectual Property except: the disposition in the ordinary course of business of Equipment that is obsolete, excess or no longer used or useful in the Borrower's or its Subsidiaries' businesses; transfers of assets between the Loan Parties and which do any wholly-owned Subsidiary thereof or between wholly-owned Subsidiaries of such Loan Parties not materially interfere otherwise prohibited by this Agreement; sales, assignments, transfers, leases, conveyances or other dispositions of other assets (other than pursuant to the foregoing clauses (i) and (ii)) if such transaction (a) is for consideration consisting at least eighty-five percent (85%) of cash, (b) is for not less than fair market value (as determined in good faith by the Borrower's board of directors or equivalent governing body), and (c) when combined with all such other transactions (each such transaction being valued at book value) (i) during the business immediately preceding twelve-month period, represents the disposition of not greater than either (x) three percent (3%) of the Consolidated Assets of the Borrower and its Subsidiaries or (y) three percent (3%) of the Net Income of the Borrower and its consolidated Subsidiaries, taken in each case, determined as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title at the end of the licensed Intellectual Property nor have the same effect as a sale of fiscal year immediately preceding that in which such Intellectual Property; transaction is proposed to be entered into, and (ii) Transfers during the period from the Closing Date to the date of worn-outsuch proposed transaction, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in represents the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; not greater than either (x) fifteen percent (15%) of the sale Consolidated Assets of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property Borrower and its Subsidiaries or (By) fifteen percent (15%) of the proceeds Net Income of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary and its consolidated Subsidiaries, in each case, determined as at the end of Borrower the fiscal year immediately preceding that in which such transaction is not liquidating, winding up or dissolvingproposed to be entered into; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.and
Appears in 2 contracts
Samples: Credit Agreement (Steiner Leisure LTD), Credit Agreement (Steiner Leisure LTD)
Sales of Assets. SellNo member of the Xxxxx Karan Group shall sell, assign, transfer, lease, license license, convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except assets, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixii) the sale disposition of Equipment if such Equipment is obsolete or discount without recourse of accounts receivable arising no longer useful in the ordinary course of such Borrower's business;
(iii) sales of assets with an aggregate market value not in excess of Two Million Dollars ($2,000,000) in any rolling twelve (12) month period for all Borrowers;
(iv) sub-licensing of the trademarks pursuant to the terms of the License Agreement in connection with any business in which a Borrower is engaged at such time, together with the sale of any inventory in connection with such sub-licensing, or the sale of a Subsidiary of Xxxxx Karan International (other than Xxxxx Karan Studio); provided that (A) the business in connection with such sub- licensing or such Subsidiary did not generate revenues for the compromise or collection thereof; twelve month period ending on the last day of the immediately preceding fiscal quarter greater than the lesser of (xI) 10% of the sale of property to the extent that revenues for Xxxxx Karan International and its Subsidiaries on a consolidated basis for such period and (AII) such property is exchanged for credit against the purchase price of similar replacement property or $60,000,000 and (B) the proceeds consideration for such sub- licensing and sale of inventory or for such Transfer are promptly applied sale of a Subsidiary is equivalent to the purchase price fair market value thereof;
(v) the sub-licensing of such replacement property; (xi) Transfers of Investments in joint ventures the trademarks pursuant to the extent required byterms of the License Agreement in any of the following businesses prior to the end of 1996: jeanswear and related apparel, or made swimwear, DKNY underwear, watches and home furnishings; together with the sales of inventory in connection with any such sub-licensing; and
(vi) the sub-licensing of the trademarks pursuant to customary buy/sell arrangements between the joint venture parties set forth terms of the License Agreement in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from connection with any settlement ofbusiness in which no Borrower participates at such time, or payment in respect together with the sale of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement inventory in accordance connection with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transferssub-licensing, provided that the aggregate consideration for such sub-licensing and sale of inventory is equivalent to the fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearthereof.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) any of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business Upon receipt of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses proceeds of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of
(I) any Equipment (other than sales of Intellectual Property that Equipment in which the net proceeds, either individually or in the aggregate, are less than Five Thousand and No/100 Dollars ($5,000)) of any US Company, or if any Equipment of any US Company is damaged, destroyed or taken by condemnation in whole or in part, US Borrower determinesshall cause the proceeds thereof to be paid to Lender as a mandatory prepayment of the Liabilities, which such prepayment shall be applied (x) first to Term Loan A against the remaining installments of principal thereof in the inverse order of their maturities until Term Loan A is repaid in full, (y) second pro-rata to each of Term Loan B, Term Loan C and Term Loan D against the remaining installments of principal thereof in the inverse order of their maturities until each of the Term Loan B, Term Loan C and Term Loan D is repaid in full, and (z) then against the other Liabilities, as determined by Lender, in its reasonable business judgment, is no longer desirable in the conduct of its business sole discretion;
(including allowing II) any registrations or any applications for registration Equipment of any intellectual property Non-US Company, or if any Equipment of any Non-US Company is damaged, destroyed or taken by condemnation in whole or in part, US Borrower shall cause the proceeds thereof (other than proceeds pertaining to lapse or go abandoned); (viii) Equipment of Oilgear UK to the sale of inventory or collateral extent such Equipment secures the Venture Debt and such proceeds are required to repay the Venture Debt in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection accordance with the compromise or collection thereof; Venture Debt Documents) to be paid to Lender as a mandatory prepayment of the Liabilities, which such prepayment shall be applied (x) first pro-rata to each of the sale Term Loans against the remaining installments of principal thereof in the inverse order of their maturities until each of the Term Loans is repaid in full, and (y) then against the other Liabilities, as determined by Lender, in its sole discretion;
(III) any real property of any US Company, or if any real property of any US Company is damaged, destroyed or taken by condemnation in whole or in part, US Borrower shall cause the proceeds thereof to be paid to Lender as a mandatory prepayment of the Liabilities, which such prepayment shall be applied (x) first to Term Loan B against the remaining installments of principal thereof in the inverse order of their maturities until Term Loan B is repaid in full, (y) second pro-rata to each of Term Loan A, Term Loan C and Term Loan D against the remaining installments of principal thereof in the inverse order of their maturities until each of the Term Loan A, Term Loan C and Term Loan D is repaid in full, and (z) then against the other Liabilities, as determined by Lender, in its sole discretion; and
(IV) any real property of any Non-US Company, or if any real property of any Non-US Company is damaged, destroyed or taken by condemnation in whole or in part, US Borrower shall cause the proceeds thereof (other than (i) proceeds pertaining to real property of Oilgear UK to the extent that such real property secures the Barclays Debt and such proceeds are required to repay the Barclays Debt in accordance with the Barclays Debt Documents and (Aii) such property is exchanged for credit against the purchase price of similar replacement property or up to Seven Hundred Fifty Thousand and No/100 Dollars (B$750,000) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required bysuch amount is necessary to pay relocation costs incurred by Oilgear UK with respect to Oilgear UK’s relocation from its facility located in Leeds, England (the “Relocation Expenses”)) to be paid to Lender as a mandatory prepayment of the Liabilities, which such prepayment shall be applied (x) first pro-rata to each of Term Loan C and Term Loan D (or just to Term Loan C with respect to real property of German Borrower, or made pursuant just to customary buy/sell arrangements between Term Loan D with respect to real property of Spanish Borrower) against the joint venture parties set forth remaining installments of principal thereof in joint venture arrangements and similar binding arrangements; the inverse order of their maturities until such Term Loan(s) is repaid in full, (xiiy) Transfers second pro-rata to each of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement ofthe other Term Loans against the remaining installments of principal thereof in the inverse order of their maturities until each of the other Term Loans is repaid in full, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xviz) then against the other TransfersLiabilities, provided that the aggregate fair market value of such Transfers as determined by Lender, in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearits sole discretion.
Appears in 1 contract
Sales of Assets. SellNone of Borrowers and their Significant Subsidiaries will convey, sell, lease, transfer, lease, license or otherwise dispose of, or part with control of (whether in one transaction or a “Transfer”series of transactions) any assets (including any shares of Borrower’s assets except stock in any Subsidiary or other Person), except:
(i) non-exclusive licenses, sublicenses, leases Sales or subleases other dispositions of Intellectual Property inventory in the ordinary course of business;
(ii) Sales or other dispositions of assets in the ordinary course of business and which do have become worn out or obsolete or which are promptly being replaced;
(iii) Sales of accounts receivable to financial institutions not materially interfere affiliated with either Borrower; provided that (A) the business discount rate shall not at any time exceed ten percent (10%), (B) the amount of all accounts receivable permitted to be sold in any fiscal quarter shall not exceed twenty percent (20%) of the Borrower consolidated accounts receivable of LSI and its Subsidiaries, taken determined as of the last day of the immediately preceding fiscal quarter (or fiscal year, as the case may be), and (C) the sole consideration received for such sales shall be cash;
(iv) Sales of equipment to be leased back to LSI in conjunction with a whole"synthetic" lease financing of such equipment, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale "principal" amount of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; financing does not exceed $250,000,000;
(v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers Sales or other dispositions of Collateral (other than Intellectual Property) for fair consideration and in assets outside the ordinary course of its businessbusiness which do not constitute Substantial Assets (as defined below);
(vi) Sales of assets which yield Net Proceeds which are applied to prepay the U.S. Loans pursuant to clause (iv) of Subparagraph 2.05(c); and
(vii) the sale Sales or other dispositions of Permitted Investments. For purposes of clause (v) above, a sale, lease, transfer or other disposition of Intellectual Property that Borrower determinesassets shall be deemed to be of "Substantial Assets" if such assets, when added to all other assets conveyed, sold, leased, transferred or otherwise disposed of by LSI and its Subsidiaries in its reasonable business judgment, is no longer desirable in the conduct any period of its business four consecutive fiscal quarters (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral other than assets sold in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xviiii) does not above), shall exceed $1,000,000 in any ten percent (10%) of Consolidated Total Assets as determined as of the last day of the fiscal yearquarter of LSI immediately preceding the date of determination.
Appears in 1 contract
Samples: Credit Agreement (Lsi Logic Corp)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property Inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business and which do not materially interfere with of equipment that is obsolete, excess or no longer used or useful in the business of the Borrower and Company's or its Subsidiaries' businesses;
(iii) any transfer of an interest in Receivables, taken Receivables Related Security, accounts or notes receivable on a limited recourse basis under the Receivables Purchase Documents; provided, that such transfer qualifies as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect sale and as a sale under Agreement Accounting Principles and; provided, further, that all Receivables Facility Attributed Indebtedness of the Company and its Subsidiaries does not exceed at any one time outstanding an amount equal to twenty percent (20%) of the Company and its consolidated Subsidiaries' assets at such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; time;
(iv) Transfers constituting Permitted Lienstransfers of assets between the Company and any wholly-owned Subsidiary of the Company, including without limiting the generality of the foregoing transfers between the Company or any of its Subsidiaries and any SPV, or between wholly-owned Subsidiaries of the Company not otherwise prohibited by this Agreement, provided, that the aggregate amount of all Non-Controlled Subsidiary Investments shall not exceed $10,000,000 at any time; and
(v) Transfers permitted other leases, sales or other dispositions of assets if such transaction (a) is for consideration consisting at least eighty percent (80%) of cash, (b) is for not less than fair market value (as determined in Section 6.6 hereunder; good faith by the Company's board of directors), and (vic) Transfers involves assets that, together with all other assets of Collateral the Company and its Subsidiaries previously leased, sold or disposed of (other than Intellectual Propertypursuant to clauses (i) for fair consideration and through (iv) above) as permitted by this Section during the twelve-month period ending with the month in the ordinary course of its business; (vii) the which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of the Company and its Subsidiaries when combined with all such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and other transactions (xvi) other Transfers, provided that the aggregate fair market value of each such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction being valued at book value).
Appears in 1 contract
Samples: Credit Agreement (Plexus Corp)
Sales of Assets. SellThe Borrower shall, transferon each date on which the Borrower or any of its Subsidiaries receives any Net Cash Proceeds from the sale, lease, license transfer or otherwise dispose other disposition (each, a "Disposition") of any asset of the Borrower or any such Subsidiary (a “Transfer”) any other than sales of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business any exchange of assets permitted by Section 5.02(e)(iv)), prepay an aggregate principal amount of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title A Advances comprising part of the licensed Intellectual Property nor have same A Borrowings equal to such Net Cash Proceeds (or, if less, the same effect as a sale aggregate unpaid principal amount of all A Advances), together with accrued interest to the date of such Intellectual Property; prepayment on the principal amount prepaid and all amounts, if any, then owing under Section 8.04(b) in respect of such prepayment. Notwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this paragraph (iib)(i) Transfers of worn-out, obsolete or surplus property with respect to the Net Cash Proceeds from any Disposition (each as determined by Borrower in its reasonable judgment); a "Relevant Disposition") if (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii1) the sale applicable Rate Ratio is less than or other disposition equal to 5.0:1 on the date of Intellectual Property that Borrower determinesreceipt of such Net Cash Proceeds, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii2) the sale of inventory or collateral Borrower advises the Agent at the time the Net Cash Proceeds from such Relevant Disposition are received that it intends to reinvest such Net Cash Proceeds in the ordinary course of business and goods held for sale in the ordinary course of business; replacement assets pursuant to a transaction permitted under Section 5.02(f) hereof, (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A3) such property is exchanged Net Cash Proceeds are in fact committed to be reinvested by the Borrower pursuant to a purchase contract providing for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price acquisition of such replacement property; assets that is executed by the Borrower (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xivof its Subsidiaries) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) and the liquidation, wind up or dissolution of any Subsidiary so long as all related seller within 180 days from the assets date of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.Relevant Disposition and
Appears in 1 contract
Sales of Assets. SellThe Company shall not, transfernor shall it permit any Subsidiary to, leaseconsummate any Asset Sale, license or otherwise dispose of (a “Transfer”) any of Borrower’s assets except except:
(i) nontransfers of assets (A) to the Company, between the Company and any Wholly-exclusive licensesOwned Subsidiary or between any Wholly-Owned Subsidiaries, sublicenses, leases or subleases of Intellectual Property in each case in the ordinary course of business and which do not materially interfere with or for tax planning purposes or (B) by any Non-Wholly-Owned Subsidiary to the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Company or any other Subsidiary;
(ii) Transfers transfers of worn-outassets otherwise permitted pursuant to Section 7.03(d), obsolete Section 7.03(f) or surplus property (each as determined by Borrower in its reasonable judgmentSection 7.03(h); ;
(iii) [reserved]; sales, assignments, transfers, lease conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the Company’s chief financial officer), and (b) when combined with all such other transactions (each such transaction being valued at book value) and all Sale and Leaseback Transactions (each such Sale and Leaseback Transaction being valued at book value) during the period from the Original Closing Date to the date of such proposed transaction, represents (when taken together with prior dispositions made pursuant to this clause (iii)) the disposition of not greater than 25% of the Company’s Consolidated Net Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into;
(iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers sales, assignments or leases of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixv) the sale sales of any Purchased Dealership;
(vi) sales, transfers or discount without recourse other dispositions in respect of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to to, customary buy/sell arrangements between the joint venture parties as set forth in the applicable joint venture arrangements and agreement or similar arrangement;
(vii) sales, transfers or other dispositions of assets acquired pursuant to a Permitted Acquisition that in the judgment of the Company’s management are not necessary or desirable to carry out the Company’s business plans, to the extent binding arrangements; (xii) Transfers agreements or letters of Borrower’s cash intent providing for such sales, transfers or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) other dispositions are entered into within 12 months after the liquidation, wind up or dissolution of any Subsidiary so long as all the assets acquisition of such liquidatingassets and
(viii) sales of Receivables pursuant to non-recourse (subject to customary indemnification obligations) factoring arrangements or similar arrangements, winding up but not pursuant to a securitization or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearfinancing arrangement.
Appears in 1 contract
Sales of Assets. SellNone of Holdings, the Company or any of the Company's Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except Property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases the sale of Intellectual Property (other than General Intangibles) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale (including sales of such Intellectual Property; Property between the Borrowers and their Subsidiaries);
(ii) Transfers the sale of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); Receivables pursuant to the Permitted Receivables Transaction Documents;
(iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers sales of Collateral (other than Intellectual Property) for fair consideration and in assets outside of the ordinary course of its businessbusiness not in excess of $1,000,000 in any Fiscal Year; provided, however, (viiA) sales of Collateral permitted pursuant to this clause shall be for cash or on customary payment terms and (B) sales of other assets permitted pursuant to this clause may be for cash, on customary payment terms or for promissory notes, provided, that all cash shall be applied to the sale Obligations (in accordance with Section 3.01(b)) of the Borrower whose Collateral is being sold and all promissory notes shall be pledged to the Agent or other disposition the Canadian Agent, as applicable, as additional Collateral;
(iv) sales of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral Receivables in the ordinary course of business made (A) between Borrowers or (B) from Subsidiaries of the Company to a Borrower, provided, that all actions under the Uniform Commercial Code and goods held for sale other applicable Requirements of Law required to perfect the purchaser's interest in such Receivables shall have been taken;
(v) assignments and licenses of intellectual property of the Company in the ordinary course of business;
(vi) subleases of leases or leases of owned Real Property, to the extent such leases and subleases have anticipated annual rentals of less than $1,000,000 each;
(vii) sales of Receivables backed by foreign letters of credit of not more than $3,500,000 in any Fiscal Year (or such larger amount as the Agent may approve in its sole discretion);
(viii) sales of Capital Stock of Subsidiaries of the Company permitted by Section 9.13; and
(ix) additional dispositions which may be approved by the sale or discount without recourse Agent in its sole discretion and which result in Net Cash Proceeds of accounts receivable arising not more than $2,500,000 in the ordinary course of business in connection with the compromise or collection thereofaggregate; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.and
Appears in 1 contract
Sales of Assets. Sell(a) Borrower shall not, and shall not permit any of its Subsidiaries to, sell, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s its assets except or properties; PROVIDED, HOWEVER, that the foregoing shall not prohibit:
(i) non-exclusive licenses, sublicenses, leases or subleases a Disposition to any Person (which may include Cablevision); PROVIDED that the Net Cash Proceeds thereof shall not be less than the sum of Intellectual Property in (x) the ordinary course of business and which do not materially interfere with the business aggregate outstanding amount of the Borrower Obligations and its Subsidiaries, taken as a whole, provided (y) $4,010,000; PROVIDED FURTHER that such licenses of Intellectual Property neither result Net Cash Proceeds are immediately applied to repay in a legal transfer of title of full the licensed Intellectual Property nor have the same effect as a sale Obligations, and an additional $4,010,000 of such Intellectual Property; Net Cash Proceeds are paid to such Person or Persons as GE Capital shall in its sole discretion direct;
(ii) Transfers the sale of worn-outsurplus or obsolete equipment and fixtures or transfers resulting from any casualty or condemnation of assets or properties, obsolete PROVIDED that if the proceeds of such sales or surplus property transfers exceed $150,000 in any one instance or $1,800,000 in the aggregate, Borrower shall, within 90 days thereafter, prepay the Loans, in an amount equal to the excess of (each x) the entire proceeds of any such single sale or transfer exceeding $150,000 (or the amount of such aggregate proceeds in excess of $1,800,000 as determined the case may be), over (y) the amount expended by Borrower to repair or replace such assets or properties prior to, or within 90 days after, the occurrence of such sale or transfer; PROVIDED FURTHER that any net sales proceeds to be applied to prepay Loans shall be applied in accordance with the provisions of Section 2.3(a) hereof;
(iii) any transfer of the Newco Stock to V Cable pursuant to the Exchange Agreement Termination (as defined in the Redemption Agreement); and
(iv) a disposition of a System to any Person; PROVIDED, HOWEVER, that (i) (a) a Required Approval (as defined in the Redemption Agreement) with respect to such System is a condition to the consummation of the transaction under the Redemption Agreement and (b) Borrower has not been able to obtain such Required Approval and would not, in its reasonable judgment); , be able to obtain such Required Approval in a timely manner, (ii) the Net Cash Proceeds thereof are applied to repay a portion of the Obligations and (iii) [reserved]after giving effect to any such disposition Borrower will be in compliance with Section 6.14 hereof as if such disposition had occurred prior to the end of the last full Fiscal Quarter ending immediately preceding the date of such disposition as evidenced by a certificate of an officer of Borrower; and, PROVIDED, FURTHER, that Borrower shall not be permitted to dispose of a System pursuant to this clause (iv) Transfers constituting Permitted Liens; if after giving effect to such disposition, the total number of Subscribers (vmeasured on the latest practicable date prior to such disposition) Transfers permitted in Section 6.6 hereunder; (vi) Transfers attributable to Systems disposed of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xviiv), after giving effect to the proposed disposition, would in the aggregate exceed 10% of the total number of Subscribers (measured as of the latest practicable date) does not exceed $1,000,000 in attributable to Systems owned by Borrower and its Subsidiaries as of such date.
(b) In the event of any fiscal yearprepayment of any Obligations pursuant to Section 7.11(a)(i) hereof, Borrower's right to receive Revolving Credit Advances hereunder shall simultaneously terminate.
Appears in 1 contract
Sales of Assets. SellNeither the Company nor any of its Subsidiaries shall consummate any Asset Sale unless (x) the Company shall have prepaid the outstanding "Advances" and reduced the "Aggregate Revolving Loan Commitment" under (and as defined in) the 5-Year Credit Agreement, transferand the "Advances" under (and as defined in) the 5-Year Finance Facility Agreement and reduced the aggregate commitment thereunder, leasein accordance with Sections 2.6 and 7.2(N) of the 5-Year Credit Agreement, license or otherwise dispose and thereafter prepaid the Advances and reduced the Aggregate Revolving Loan Commitment hereunder, and the "Advances" under (and as defined in) the 364- Day CLO Finance Facility Agreement and reduced the aggregate commitment thereunder, in accordance with the terms of Sections 2.6 and 7.2(N) hereof, and (a “Transfer”y) any such Asset Sale shall be for not less than fair market value (as determined in good faith by the Company's chief financial officer) and for consideration consisting of Borrower’s assets except at least eighty percent (80%) of cash, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property Asset Sales in the ordinary course of business and which do not materially interfere connection with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Receivables permitted under Section 7.3(A);
(ii) Transfers transfers of wornassets between the Company and any wholly-out, obsolete owned Subsidiary of the Company or surplus property (each as determined between wholly-owned Subsidiaries of the Company not otherwise prohibited by Borrower in its reasonable judgment); this Agreement;
(iii) [reserved]; sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the Company's chief financial officer), and (b) when combined with all such other transactions (each such transaction being valued at book value) and all Sale and Leaseback Transactions (each such Sale and Leaseback Transaction being valued at book value) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than fifteen percent (15%) of the Company's Consolidated Net Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into;
(iv) Transfers constituting Permitted LiensAsset Sales pursuant to unrelated transactions in an amount not to exceed $1,000,000 per transaction; and
(v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers sales of Collateral (other than Intellectual Property) for fair consideration notes receivable and in lease receivables of the ordinary course of Company and its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Subsidiaries in the ordinary course of business, including without limitation, those listed on Schedule 7.3(B); (ix) provided, that in no event shall any Asset Sale be permitted hereunder if a Default or Unmatured Default shall have occurred and is continuing as of the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds date of such Transfer are promptly applied to Asset Sale or, after the purchase price consummation of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byAsset Sale and after giving effect thereto, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearwould exist.
Appears in 1 contract
Samples: 364 Day Credit Agreement (American National Can Group Inc)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Significant Subsidiaries shall consummate any Asset Sale, except: 89
(i) nontransfers of assets between the Company and any wholly-exclusive licenses, sublicenses, leases owned Subsidiary of the Company or subleases between wholly-owned Subsidiaries of Intellectual Property the Company not otherwise prohibited by this Agreement;
(ii) sales of inventory in the ordinary course of business;
(iii) the disposition in the ordinary course of business of equipment or property that is obsolete, excess, or no longer necessary, used or useful in the Company’s or any Subsidiary’s business or of any asset in exchange for, or the proceeds of which shall be used to acquire, any replacement asset necessary or useful in the business of the Company or any Subsidiary;
(iv) sales, transfers or assignments of Receivables in connection with receivables purchase facilities; provided, that the aggregate amount of Receivables Facility Attributed Indebtedness arising in connection therewith does not exceed amounts permitted under Section 7.3(A)(xiv);
(v) sales, transfers and which other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof consistent with past practice or other customary or reasonable business practices;
(vi) sales, transfers, leases and other dispositions of property that are (x) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business, (y) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with the Company or any Subsidiary (including in connection with an acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger or (z) another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Subsidiary, unless all Equity Interests in such Subsidiary are sold);
(vii) leases entered into in the ordinary course of business, and sale and leaseback transactions, in each case, to the extent that they do not materially interfere with the business of the Borrower Company and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of Subsidiaries and the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers assets and the related Indebtedness under any resulting Capitalized Lease would otherwise be permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); ;
(viii) the sale sales, transfers, licenses or sublicenses of inventory or collateral in the ordinary course of business and goods held for sale intellectual property in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property , to the extent that they do not materially interfere with the business of the Company and its Subsidiaries;
(Aix) such property is exchanged for credit against the purchase price dispositions resulting from any casualty or other damage to, or any taking under power of eminent domain or by condemnation or similar replacement proceeding of, any property or asset of the Company or any Subsidiary; and 90
(Bx) the contributions of assets constituting Investments in Joint Ventures that would otherwise be permitted under Section 7.3(D)(xi) and for which no cash proceeds of such Transfer are promptly applied to the purchase price of such replacement property; received;
(xi) Transfers the unwinding of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementsHedging Arrangements; and
(xii) Transfers sales, assignments, transfers, leases, conveyances or other dispositions of Borrower’s cash or cash equivalents other assets if such transaction (a) is for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate less than fair market value (as determined in good faith by the Company’s management or board of directors) and (b) when combined with all such Transfers in reliance on other transactions pursuant to this clause Section 7.3(B)(xii) (xvieach such transaction being valued at book value) does not exceed $1,000,000 in any during the then current fiscal year, represents the disposition of assets with an aggregate book value not greater than 15% of the aggregate book value of Consolidated Assets as of the end of the immediately preceding fiscal year. If the proceeds resulting from an Asset Sale are used by the Company or the applicable Subsidiary within 180 days of the date on which such proceeds arose to acquire property useful in such Person’s business, then, only for purposes of determining compliance with this Section 7.3(B)(xii), such Asset Sale shall not be included in such determination.
Appears in 1 contract
Samples: Credit Agreement (Woodward, Inc.)
Sales of Assets. SellThe Borrower will not, transferand will not cause or permit any of its Subsidiaries to, sell, assign, License, lease, license convey, exchange, transfer or otherwise dispose of its Property (each, a “TransferDisposition”) (including, without limitation, any Capital Stock of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of any Subsidiary owned by the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (iior another Subsidiary) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (to any other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business Person (including allowing any registrations without limitation, Borrower or any applications for registration other Loan Party shall not cause a Disposition to any Subsidiary or Affiliate that is not a Loan Party), except:
(a) Dispositions of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixb) Dispositions of obsolete, worn-out or surplus assets no longer used or usable in the sale business of the Borrower or discount without recourse any of accounts receivable arising its Subsidiaries in the ordinary course of business business;
(c) leases, non-exclusive licenses or sublicenses of real or personal property in connection with the compromise or collection thereof; ordinary course of business, in each case subject to the Liens granted under the Note Documents;
(xd) Dispositions permitted by clause (b) of Section 9.4;
(e) Dispositions, settlements and write-offs of accounts receivable in the sale ordinary course of property business;
(f) Dispositions of Property to the extent that (Ai) such property Property is exchanged for credit against the purchase price of similar replacement property or (Bii) the proceeds of such Transfer Disposition are reasonably promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments property and, in joint ventures to the extent required byeach case, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets Purchaser has a Lien with respect to such replacement property with the same priority as the Lien of such liquidatingPurchaser with respect to the Property disposed of;
(g) Dispositions which constitute, winding up or dissolving which are subject to, a Casualty Event;
(h) Dispositions by (i) any Loan Party to any other Loan Party (other than a Foreign Subsidiary), and (ii) any Subsidiary are transferred that is not a Loan Party to the Borrower or another wholly owned any other Subsidiary of Borrower the Borrower; and
(i) (i) any lapse of Intellectual Property by any Loan Party that is not liquidatingeconomically desirable in the conduct of the Loan Parties’ business or (ii) any abandonment, winding up cancellation, non-renewal or dissolving; discontinuance of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (xvi) other Transfersii)), provided that such lapse is not materially adverse to the aggregate fair market value interests of the Purchaser and such Transfers Intellectual Property is not then being used by the Loan Parties in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearthe ordinary course of business.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Borrower nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(i) non-exclusive licenseslicenses or sublicenses by the Borrower or its Subsidiaries of software, sublicensescustomer lists, leases or subleases of Intellectual Property trademarks, service marks, patents, trade names and copyrights and other intellectual property in the ordinary course of business and which do business; provided, that such licenses or sublicenses shall not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that or any such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Subsidiary;
(ii) Transfers transfers of wornassets between the Borrower and any wholly-outowned Subsidiary of the Borrower or between wholly-owned Subsidiaries of the Borrower not otherwise prohibited by this Agreement; provided, obsolete or surplus property (each as determined by Borrower in its reasonable judgment)that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time; and
(iii) [reserved]sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the Borrower's board of directors), and (b) when combined with all such other transactions (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than ten percent (10%) of the Borrower's Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than twenty-five percent (25%) of the Borrower's Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into; and
(iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business sales in connection with reorganization, restructuring and rationalization of the compromise or collection thereof; Borrower and its Subsidiaries (xincluding the business purchased pursuant to the Tender Offer) the sale non-recurring expenses related to which are charged to operating expenses during the first three (3) fiscal years following the Closing Date up to amounts not to be in excess of property to $25,000,000 on a pre-tax basis in the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearaggregate.
Appears in 1 contract
Samples: Credit Agreement (Schawk Inc)
Sales of Assets. SellThe Company will not, transferand will not permit any Restricted Subsidiary to, leasesell, license lease or otherwise dispose of any substantial part (as defined below) of the assets of the Company and its Restricted Subsidiaries; provided, however, that the Company or any Restricted Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Company and its Restricted Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “Transfer”substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on the business of Borrower’s the Company and its Restricted Subsidiaries and having a value at least equal to the value of such assets except sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Indebtedness of the Company and/or its Restricted Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of the Make-exclusive licensesWhole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.5 shall be given to each holder of the Notes by written notice that shall be delivered not less than fifteen (15) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date, sublicenses(ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than five (5) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment. Prepayment of Notes pursuant to this Section 10.5 shall be made in accordance with Section 8.2 (but without payment of the Make-Whole Amount). As used in this Section 10.5, leases a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Restricted Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 10% of the book value of the Consolidated Total Assets of the Company and its Restricted Subsidiaries, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Company and its Restricted Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-outassets from the Company to any Restricted Subsidiary or from any Restricted Subsidiary to the Company or a Restricted Subsidiary, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; any sale or transfer of property acquired by the Company or any Restricted Subsidiary after the date of this Agreement to any Person within 365 days following the acquisition or construction of such property by the Company or any Restricted Subsidiary if the Company or a Restricted Subsidiary shall concurrently with such sale or transfer, lease such property, as lessee, and (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse transfers of accounts receivable arising in the ordinary course (and rights ancillary thereto) of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byMolex Japan pursuant to, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidationterms of, wind up or dissolution of any Subsidiary so long as all factoring agreements pursuant to which the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that Factoring Indebtedness is not liquidating, winding up or dissolving; and (xvi) other Transfersincurred, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) Factoring Indebtedness does not exceed $1,000,000 in 60,000,000 at any fiscal yeartime outstanding.
Appears in 1 contract
Samples: Note Purchase Agreement (Molex Inc)
Sales of Assets. SellEach of Comercial and Vitrocrisa will not, transferand will not permit any of their Consolidated Subsidiaries to, sell, lease, license assign, transfer or otherwise dispose of, directly or indirectly (or agree to do any of the foregoing at any future time), all or any part of its property or assets, except that:
(a) Each of Comercial, Vitrocrisa and their Consolidated Subsidiaries may, in the ordinary course of business, sell, lease or otherwise dispose of (a “Transfer”) any assets which, in its reasonable judgment, are no longer useful in the conduct of Borrower’s assets except its business; provided, that the aggregate proceeds of any such sales, leases or dispositions, if any, and net of fees and expenses related thereto, are either (i) non-exclusive licensesreinvested in the business of such Person or (ii) applied to repay Indebtedness of such Person, sublicensesin each case by a date no later than 180 days from the closing date of such sale, lease or disposition; and further provided, that such sales, leases or subleases dispositions are for fair value and that the aggregate proceeds of Intellectual Property all such sales, leases or dispositions in any calendar year shall not exceed ten percent (10%) of the book value of all assets and properties of Comercial and Vitrocrisa determined by reference to the most recent financial statements delivered to the Administrative Agent pursuant to this Agreement;
(b) Each of Comercial, Vitrocrisa and their Consolidated Subsidiaries may (i) make sales of inventory in the ordinary course of business, the proceeds of which sales are applied to such business and (ii) discount domestic accounts receivables in the ordinary course of business on a non-recourse basis without representations or warranties as to such receivables pursuant to payment arrangements entered into with purchasers of product; and which do not materially interfere with (c) Each of Comercial, Vitrocrisa and their Consolidated Subsidiaries may sell, lease or otherwise dispose of assets or property; provided, that (i) the aggregate proceeds of any such sales, leases or dispositions, if any, and net of fees and expenses related thereto, are either (x) reinvested in the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale Person or (y) applied to repay Indebtedness of such Intellectual Property; Person, in each case by a date no later than 180 days from the closing date of such sale, lease or disposition, and (ii) Transfers that the aggregate proceeds of worn-outall assets subject to such sales, obsolete leases or surplus property dispositions in any calendar year shall not exceed 10% of the Consolidated Net Worth of Vitrocrisa and Comercial (each determined on a combined basis) (as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property reference to the extent that (A) such property is exchanged for credit against the purchase price most recent quarterly consolidated and combined balance sheet of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byVitrocrisa, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements Comercial and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartheir Consolidated Subsidiaries).
Appears in 1 contract
Samples: Credit Agreement (Vitro Sa De Cv)
Sales of Assets. SellSubject to the Intercreditor Agreement, transfer, lease, license or otherwise dispose upon receipt of Net Proceeds from (a “Transfer”) any of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (viiA) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct any property or assets of any Loan Party or any of its business Subsidiaries (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of other than inventory or collateral sold in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of accounts receivables to Receivables SPE pursuant to the Receivables Transfer Agreement) or (B) any casualty insurance pursuant to Section 6.07 or business interruption insurance, or if any of such property or assets are comprised of real property subject to a mortgage that is damaged, destroyed or taken by condemnation, in whole or in part, the Borrower shall pay or cause such Loan Party or its Subsidiaries to pay to the Administrative Agent, for the ratable benefit of the Lenders, an amount equal to 100% of such Net Proceeds as a mandatory prepayment of the Obligations; provided that, no proceeds realized in a transaction or series of transactions which would otherwise be subject to the prepayment requirements under the foregoing clause (A) or (B) shall constitute Net Proceeds for purposes of this Section 2.05(b)(ii) until the aggregate proceeds from all such transactions exceed $250,000 over the term of this Agreement (and thereafter all such proceeds, including the initial $250,000 of such proceeds, shall constitute Net Proceeds for purposes of this Section 2.05(b)(ii) and be subject to the prepayment requirement included herein). Notwithstanding the foregoing, the Borrower will not be required to use Net Proceeds to prepay the Obligations to the extent that (A) the relevant Loan Party or Subsidiary reinvests such property is exchanged for credit against the purchase price of similar Net Proceeds in replacement property or (B) the proceeds assets within 90 days following its receipt of such Transfer Net Proceeds; provided that, during such reinvestment period, such Net Proceeds shall be held in the Term Loan Proceeds Collateral Account until the Net Proceeds are promptly applied to so reinvested.
(f) Section 2.05(b)(v) of the purchase price of such replacement property; (xi) Transfers of Investments Credit Agreement is hereby amended and restated in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long entirety as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.follows:
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property Inventory in the ordinary course of business;
(ii) Permitted Receivables Transfers;
(iii) the disposition in the ordinary course of business of Equipment that is obsolete, excess or no longer useful in the Borrower's and which do its Subsidiaries' business;
(iv) transfers of assets between the Borrower and any Controlled Subsidiary or between Controlled Subsidiaries of the Borrower not materially interfere with otherwise prohibited by this Agreement; PROVIDED, that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time;
(v) transfers of assets pursuant to Investments permitted by SECTION 7.3(D) and Restricted Payments permitted by SECTION 7.3(F);
(vi) the sale of the PET business unit of the Borrower and its Subsidiaries; PROVIDED, taken as a whole, provided that such licenses transaction (a) is for consideration consisting at least seventy-five percent (75%) of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; cash, (iib) Transfers of worn-out, obsolete or surplus property is for not less than fair market value (each as determined by the board of directors of the Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer of the Borrower's certificate delivered to the Administrative Agent), and (c) is consummated when no Default has occurred and is continuing or would result therefrom;
(vii) the sale of all or part of the assets or business constituting the Aerospace business unit of the Borrower and its reasonable judgmentSubsidiaries in one or more transactions; PROVIDED, that (a) each such transaction (x) is for consideration consisting at least seventy-five percent (75%) of cash, (y) is for not less than fair market value (as determined by the board of directors of the Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer of the Borrower's certificate delivered to the Administrative Agent); , and (iiiz) [reserved]; is consummated when no Default has occurred and is continuing or would result therefrom, and (ivb) Transfers constituting Permitted Liens; the PRO FORMA opening consolidated financial statements of the Borrower and its Subsidiaries shall demonstrate that the Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the Borrower's most recently completed fiscal quarter (vassuming the effectiveness of such sale on such last day of the Borrower's most recently completed fiscal quarter) Transfers permitted in Section 6.6 hereunder; shall be less than or equal to the greater of (viA) Transfers 3.0 to 1.0 and (B) the Leverage Ratio of Collateral the Borrower and its Subsidiaries as of the last day of the Borrower's most recently completed fiscal quarter as set forth on the compliance certificate delivered together with the financial statements for such fiscal quarter pursuant to SECTION 7.1(A)(iii);
(other than Intellectual Propertyviii) for fair consideration and leases that are operating leases under which the Borrower or any of its Subsidiaries is the lessor in the ordinary course of its businessbusiness that are not substantially equivalent to sales; and
(ix) sales, assignments, transfers, leases, conveyances or other dispositions of other assets, PROVIDED that any such transaction (a) is for consideration consisting at least seventy-five percent (75%) of cash, (b) is for not less than fair market value (as determined by the board of directors of the Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer of the Borrower's certificate delivered to the Administrative Agent), and (c) when combined with all such other transactions pursuant to this CLAUSE (ix) (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than $100,000,000, and (ii) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than $300,000,000. Not less than five (5) Business Days prior to the consummation of any transaction permitted by CLAUSE (vi), (vii), or (ix) above, the Borrower shall deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying compliance with the requirements of CLAUSE (vi), (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) ), as applicable, and showing in reasonable detail the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) calculations on which such property certification is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearbased.
Appears in 1 contract
Sales of Assets. SellIn addition to the repayments set forth in Section 2.7(a) hereof, transferon the first Business Day following the receipt of Net Proceeds (Asset Sales) the Term Loan B Loans shall be repaid, leaseand/or the Revolving Loan Commitment reduced, license by an amount equal to the Net Proceeds (Asset Sales), together with accrued interest on the portion of the Loans repaid, from any sales, leases, transfers, or otherwise dispose other dispositions of (a “Transfer”) the Parent's, the Borrower's or any of Borrower’s its Subsidiaries' assets except (i) non-exclusive licensesexcluding such sales, sublicensesleases, leases transfers or subleases of Intellectual Property other dispositions in the ordinary course of the Parent's, the Borrower's or any of its Subsidiaries' business and which do not materially interfere with or permitted pursuant to Section 7.4 hereof); provided, however, that no such repayment shall be required if the Borrower notifies the Administrative Agent on or before the date such repayment would otherwise be required under this Section 2.8(a) that the Borrower intends to use any or all of such Net Proceeds (Asset Sales) to invest in assets necessary or useful in the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title within one hundred twenty (120) days of the licensed Intellectual Property nor have the same effect as a sale date of such Intellectual Property; (ii) Transfers of worn-outsale, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale lease, transfer or other disposition of Intellectual Property that Borrower determinesdisposition, in its reasonable business judgmentwhich case, the repayment of the Loans which is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viiiotherwise required under this Section 2.8(a) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property up to the extent that amount of the Net Proceeds (AAsset Sales) such property is exchanged for credit against the purchase price of similar replacement property to be reinvested pursuant to this Section 2.8(a) need not be made, but if all or (B) the proceeds part of such Transfer Net Proceeds (Asset Sales) are promptly applied not used within such one hundred twenty (120) day period, then the Loans shall be repaid by an amount equal to the purchase price Net Proceeds (Asset Sales) calculated based on the portion of Net Proceeds (Asset Sales) not invested pursuant to this Section 2.8(a) on the one hundred twenty-first (121st) day following such sale, lease, transfer or other disposition. Any Lender with Term Loan B Loans may refuse such repayment under this Section 2.8(a) upon delivery on or prior to the date of such replacement property; (xi) Transfers repayment of Investments in joint ventures written notice to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of Administrative Agent evidencing such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearrefusal.
Appears in 1 contract
Samples: Credit Agreement (CBD Media LLC)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Borrower nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(i) non-exclusive licenseslicenses or sublicenses by the Borrower or its Subsidiaries of software, sublicensescustomer lists, leases or subleases of Intellectual Property trademarks, service marks, patents, trade names and copyrights and other intellectual property in the ordinary course of business and which do business; provided, that such licenses or sublicenses shall not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that or any such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Subsidiary;
(ii) Transfers transfers of wornassets between the Borrower and any wholly-outowned Subsidiary of the Borrower or between wholly-owned Subsidiaries of the Borrower not otherwise prohibited by this Agreement; provided, obsolete or surplus property (each as determined by Borrower in its reasonable judgment)that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time; and
(iii) [reserved]sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the Borrower's board of directors), and (b) when combined with all such other transactions (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than fifteen percent (15%) of the Borrower's Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than twenty-five percent (25%) of the Borrower's Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into; and
(iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business sales in connection with the compromise or collection thereof; (x) the sale reorganization, restructuring and rationalization of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidatingand its Subsidiaries; provided, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of non-recurring expenses arising from such Transfers in reliance on this clause reorganization, restructuring and rationalization which are charged to operating expenses are charged during the first three (xvi3) does fiscal years following any Permitted Acquisition and do not exceed $1,000,000 5,000,000, on a pre-tax basis, with respect to any Permitted Acquisition, or $10,000,000, on a pre-tax basis, in any fiscal yearthe aggregate.
Appears in 1 contract
Samples: Credit Agreement (Schawk Inc)
Sales of Assets. SellNo member of the Xxxxx Karan Group shall sell, assign, transfer, lease, license license, convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except assets, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixii) the sale disposition of Equipment if such Equipment is obsolete or discount without recourse of accounts receivable arising no longer useful in the ordinary course of such Borrower's business;
(iii) sales of assets with an aggregate market value not in excess of Two Million Dollars ($2,000,000) in any rolling twelve (12) month period for all Borrowers;
(iv) sub-licensing of the trademarks pursuant to the terms of the License Agreement in connection with any business in which a Borrower is engaged at such time, together with the sale of any inventory in connection with such sub-licensing, or the sale of a Subsidiary of Xxxxx Karan International (other than Xxxxx Karan Studio); provided that (A) the business in connection with such sub-licensing or such Subsidiary did not generate revenues for the compromise twelve month period ending on the last day of the immediately preceding fiscal quarter greater than the lesser of (I) 10% of the revenues for Xxxxx Karan International and its Subsidiaries on a consolidated basis for such period and (II) $60,000,000 and (B) the consideration for such sub-licensing and sale of inventory or collection for such sale of a Subsidiary is equivalent to the fair market value thereof;
(v) the sub-licensing of the trademarks pursuant to the terms of the License Agreement in connection with any business in which no Borrower participates at such time, together with the sale of any inventory in connection with such sub-licensing, provided that the consideration for such sub-licensing and sale of inventory is equivalent to the fair market value thereof; and
(xvi) the sale of property the thirty percent (30%) equity interest in Xxxxx Karan Japan K.K. and the transactions relating thereto, all on terms and conditions satisfactory to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearAdministrative Agent.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its --------------- Subsidiaries may sell, assign, transfer, lease, license convey or otherwise dispose of any property (a “Transfer”) including the Capital Stock of any of Borrower’s assets except Subsidiary), whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business and which do not materially interfere of equipment that is obsolete, excess or no longer useful in the Borrower's or its Subsidiaries' business;
(iii) sale (by sale of Capital Stock, sale of substantially all assets of such Guarantor, or otherwise) of a Guarantor as a going concern (provided that if Borrower incurred Indebtedness under the Note for the purposes of the Permitted Acquisition of such Guarantor, simultaneous with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Guarantor, Borrower makes a prepayment of the Indebtedness under the Note in an amount equal to the net worth (iicalculated in accordance with Agreement Accounting Principles) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgmentsuch Guarantor); (iii) [reserved]; ;
(iv) Transfers constituting sale of any real property acquired in connection with a Permitted LiensAcquisition, provided such sale is for not less than Fair Value; and
(v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale sales, assignments, transfers, leases, conveyances or other dispositions of other assets (including sales of Capital Stock of a Subsidiary) if such transaction (a) is for all cash consideration, (b) is for not less than Fair Value, (c) when combined with all such other transactions (each such transaction being valued at book value)
(1) during the immediately preceding twelve-month period, represents the disposition of Intellectual Property that not greater than $250,000.00, and (2) during the period from the date hereof to the date of such proposed transaction, represents the disposition of not greater than $500,000.00 and (d) is a sale by the Borrower determinesof Capital Stock in any Subsidiary, except as provided in subclause (c) above, the Borrower shall continue to own, of record and beneficially, with sole voting and dispositive power, 100% (unless required by the Subsidiary's franchise agreement to be less, in its reasonable business judgment, is no longer desirable in which event at least 80%) of the conduct outstanding shares of its business (including allowing any registrations or any applications for registration Capital Stock of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSubsidiary.
Appears in 1 contract
Samples: Credit Agreement (Firstamerica Automotive Inc /De/)
Sales of Assets. SellNone of Borrowers and their Significant Subsidiaries will convey, sell, lease, transfer, lease, license or otherwise dispose of, or part with control of (whether in one transaction or a “Transfer”series of transactions) any assets (including any shares of Borrower’s assets except stock in any Subsidiary or other Person), except:
(i) non-exclusive licenses, sublicenses, leases Sales or subleases other dispositions of Intellectual Property inventory in the ordinary course of business;
(ii) Sales or other dispositions of assets in the ordinary course of business and which do have become worn out or obsolete or which are promptly being replaced;
(iii) Sales of accounts receivable to financial institutions not materially interfere affiliated with either Borrower; provided that (A) the business discount rate shall not at any time exceed ten percent (10%), (B) the amount of all accounts receivable permitted to be sold in any fiscal quarter shall not exceed twenty percent (20%) of the Borrower consolidated accounts receivable of LSI and its Subsidiaries, taken determined as of the last day of the immediately preceding fiscal quarter (or fiscal year, as the case may be), and (C) the sole consideration received for such sales shall be cash;
(iv) Sales of equipment to be leased back to LSI in conjunction with a whole"synthetic" lease financing of such equipment, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale "principal" amount of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; financing does not exceed $250,000,000;
(v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers Sales or other dispositions of Collateral (other than Intellectual Property) for fair consideration and in assets outside the ordinary course of its businessbusiness which do not constitute Substantial Assets (as defined below);
(vi) Sales of assets which yield Net Proceeds which are applied to prepay the U.S. Loans pursuant to clause (iv) of Subparagraph 2.05(c); and
(vii) the sale Sales or other dispositions of Permitted Investments. For purposes of clause (v) above, a sale, lease, transfer or other disposition of Intellectual Property that Borrower determinesassets shall be deemed to be of "Substantial Assets" if such assets, when added to all other assets conveyed, sold, leased, transferred or otherwise disposed of by LSI and its Subsidiaries in its reasonable business judgment, is no longer desirable in the conduct any period of its business four consecutive fiscal quarters (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral other than assets sold in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xviiii) does not above), shall exceed $1,000,000 in any fiscal year.ten percent (10%) of
Appears in 1 contract
Samples: Credit Agreement (Lsi Logic Corp)
Sales of Assets. SellNone of the Borrowers nor any of the Borrowers' Subsidiaries (other than Foreign Subsidiaries) shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except Property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses(x) sales of inventory, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (viiy) the sale or other disposition licensing of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viiiz) the sale of inventory or collateral services, in the ordinary course of business and goods held for sale each case, in the ordinary course of business; (ix) the sale or discount without recourse provided, that sales of accounts receivable arising inventory to Foreign Subsidiaries shall only be permitted if made on an arm's length basis in the ordinary course of business on customary trade terms and so long as the aggregate amount of Receivables created in connection with such sales shall not exceed at any time 20% of the compromise or collection thereof; sum of (x) the sale consolidated Receivables of property Foamex and its Subsidiaries plus (y) the Receivables of all Foreign Subsidiaries owing to a Credit Party at such time;
(ii) sales of assets outside of the ordinary course of business (except as contemplated in clause (v) below) not in excess of $5,000,000 in a single transaction or series of related transactions, nor in excess of $10,000,000 in the aggregate in any Fiscal Year;
(iii) sales of assets by any Credit Party to any other Credit Party, provided, that, the aggregate amount of all such sales (valued at the Fair Market Value thereof), plus the amount of all loans and/or advances outstanding under Section 9.01(vii) plus the amount of all Investments outstanding under Section 9.04(vi) (computed as set forth in Section 9.04) shall not exceed $50,000,000;
(iv) the sublease of office space made by Foamex to Foamex International and TIHI at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and the lease or sublease by Foamex and its Subsidiaries of Real Property to other Persons (but only to the extent such lease or sublease is not prohibited by Section 9.08);
(v) sales or contributions of assets made by any Credit Party to a Foreign Subsidiary to the extent permitted pursuant to Section 9.04(iv) and 9.04(viii);
(vi) the sale of assets comprising Foamex's plants at Mesquite, Texas or LaPorte, Indiana, and the sale, during the twelve month period following the Effective Date, of assets comprising all or any portion of the Borrowers' non-foam business in the United States;
(vii) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license;
(viii) leases or subleases of Property set forth on Schedule 9.02(viii) hereto; and
(ix) leases or subleases of Property which in the aggregate do not provide for rental payments in excess of $1,000,000 per Fiscal Year; provided, that (A) no sales or other dispositions (other than sales of obsolete or used Equipment and assets sold or contributed to Foreign Subsidiaries pursuant to clause (v) above) shall be permitted if they are to be made for less than 90% of net book value of such property is exchanged for credit against the purchase price of similar replacement property properties or assets, and (B) the proceeds any Net Cash Proceeds of Sale in respect of such Transfer are promptly sales or other dispositions shall be remitted to the Funding Agent and applied to the purchase price repayment of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement Loans in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection 3.01(b).
Appears in 1 contract
Sales of Assets. Sell(a) The Company will not, transferand will not permit any Restricted Subsidiary to, leasesell, license lease or otherwise dispose of any substantial part (as defined below) of the assets of the Company and its Restricted Subsidiaries; provided, however, that the Company or any Restricted Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Company and its Restricted Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “Transfer”substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on the business of Borrower’s the Company and its Restricted Subsidiaries and having a value at least equal to the value of such assets except sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Indebtedness of the Company and/or its Restricted Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of the Make-exclusive licensesWhole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.5 shall be given to each holder of the Notes by written notice that shall be delivered not less than fifteen (15) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date, sublicenses(ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than five (5) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment. Prepayment of Notes pursuant to this Section 10.5 shall be made in accordance with Section 8.2 (but without payment of the Make-Whole Amount). As used in this Section 10.5, leases a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Restricted Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 15% of the book value of Consolidated Total Assets (Consolidated Total Assets to be determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition); provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Company and its Restricted Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-outassets from the Company to any Domestic Subsidiary that is a Restricted Subsidiary or from any Restricted Subsidiary to the Company or any Domestic Subsidiary that is a Restricted Subsidiary, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; any transfer of assets from any Foreign Subsidiary that is a Restricted Subsidiary to any other Foreign Subsidiary that is also a Restricted Subsidiary, (iv) Transfers constituting Permitted Liens; any sale or transfer of Property acquired by the Company or any Restricted Subsidiary after the date of this Agreement to any Person within 365 days following the acquisition or construction of such Property by the Company or any Restricted Subsidiary if the Company or a Restricted Subsidiary shall concurrently with such sale or transfer, lease such Property, as lessee, and (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, any Excluded Assets.
(b) If any Restricted Subsidiary is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement designated as an Unrestricted Subsidiary in accordance with its terms; (xv) the liquidationterms of Section 9.6, wind up or dissolution the aggregate book value of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Restricted Subsidiary are transferred shall be deemed to the Borrower or another wholly owned be sold by such Restricted Subsidiary at such time for purposes of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection 10.5.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of any property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(a “Transfer”a) any sales of Borrower’s assets except inventory in the ordinary course of business;
(ib) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property the disposition in the ordinary course of business and which do of equipment that is obsolete, excess or no longer used or useful in the Borrower’s or its Subsidiaries’ businesses;
(c) any Permitted Receivables Transfer in connection with a Permitted Receivables Facility;
(d) sales, transfers or other dispositions of property to the Borrower or a Subsidiary Guarantor; and
(e) sales, transfers or other dispositions of property of a Subsidiary that is not materially interfere with the business of a Subsidiary Guarantor to another Subsidiary that is not a Subsidiary Guarantor;
(f) the Borrower and its SubsidiariesSubsidiaries may enter into, taken as a wholeterminate or modify leases, provided that such subleases, licenses and sublicenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus technology and other property (each as determined by Borrower in its reasonable judgment); (iiiA) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds between or among any Loan Parties and any of such Transfer are promptly applied to the purchase price of such replacement property; their Subsidiaries (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; combination thereof);
(xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xvg) the liquidationsale, wind up transfer or dissolution other disposition of any Subsidiary so long as all patents, trademarks, copyrights and other intellectual property which, in the assets reasonable judgment of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary any of its Subsidiaries, are determined to be uneconomical, negligible, unused or obsolete in the conduct of business;
(h) the Borrower that and its Subsidiaries may incur Liens permitted under Section 6.03; and
(i) sales, assignments, transfers, leases, conveyances or other dispositions of other assets (other than pursuant to clauses (a) through (h) above) if such transaction (i) is for not liquidatingless than fair market value, winding up or dissolving; and (xviii) when combined with all such other Transfers, provided transactions (each such transaction being valued at book value) occurring during the fiscal year in which such proposed transaction occurred represents the disposition of not greater than fifteen percent (15%) of the Borrower’s Consolidated Assets (such Consolidated Assets being calculated for the end of the fiscal year immediately preceding that the aggregate fair market value of in which such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction is proposed to be entered into).
Appears in 1 contract
Sales of Assets. SellExcept as permitted in Section 10.6, transferthe Company will not, leaseand will not permit any Subsidiary to, license sell, lease or otherwise dispose of any substantial part (as defined below) of the assets of the Company and its Subsidiaries; provided, however, that the Company or any Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Company and its Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “Transfer”substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on the business of Borrower’s the Company and its Subsidiaries and having a value at least equal to the value of such assets except sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Debt of the Company and/or its Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of the Make-exclusive licensesWhole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.5 shall be given to each holder of the Notes by written notice that shall be delivered not less than thirty (30) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date (the “Section 10.5 Prepayment Date”), sublicenses(ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than ten (10) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment (any holder who fails to so notify the Company within ten (10) Business Days of receipt of the notice of offer of prepayment shall be deemed to have rejected such offer). The Company shall prepay on the Section 10.5 Prepayment Date the Ratable Portion of each of Note held by the holders who have accepted such offer in accordance with this Section 10.5, leases together with accrued interest thereon to the date of such prepayment. As used in this Section 10.5, a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Company and its Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 20% of the book value of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Company and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-out, obsolete assets from the Company to any Subsidiary or surplus property (each as determined by Borrower in its reasonable judgment); from any Subsidiary to the Company or a Subsidiary and (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the any sale or other disposition transfer of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in property acquired by the conduct of its business (including allowing any registrations Company or any applications for registration Subsidiary after the date of this Agreement to any intellectual Person within 270 days following the acquisition or construction of such property to lapse by the Company or go abandoned); (viii) any Subsidiary if the sale of inventory Company or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the a Subsidiary shall concurrently with such sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) transfer, lease such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearlessee.
Appears in 1 contract
Samples: Note Purchase Agreement (Old Dominion Freight Line Inc/Va)
Sales of Assets. SellThe Company shall not, transfernor shall it permit any Subsidiary to, leaseconsummate any Asset Sale, license or otherwise dispose of (a “Transfer”) any of Borrower’s assets except except:
(i) nontransfers of assets (A) to the Company, between the Company and any Wholly-exclusive licensesOwned Subsidiary or between any Wholly-Owned Subsidiaries, sublicenses, leases or subleases of Intellectual Property in each case in the ordinary course of business and which do not materially interfere with or for tax planning purposes or (B) by any Non-Wholly-Owned Subsidiary to the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Company or any other Subsidiary;
(ii) Transfers transfers of worn-outassets otherwise permitted pursuant to Section 7.03(d), obsolete Section 7.03(f) or surplus property (each as determined by Borrower in its reasonable judgmentSection 7.03(h); ;
(iii) [reserved]; sales, assignments, transfers, lease conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the Company’s chief financial officer), and (b) when combined with all such other transactions (each such transaction being valued at book value) and all Sale and Leaseback Transactions (each such Sale and Leaseback Transaction being valued at book value) during the period from the Closing Date to the date of such proposed transaction, represents (when taken together with prior dispositions made pursuant to this clause (iii)) the disposition of not greater than 25% of the Company’s Consolidated Net Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into;
(iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers sales, assignments or leases of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixv) the sale sales of any Purchased Dealership;
(vi) sales, transfers or discount without recourse other dispositions in respect of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to to, customary buy/sell arrangements between the joint venture parties as set forth in the applicable joint venture arrangements and agreement or similar arrangement;
(vii) sales, transfers or other dispositions of assets acquired pursuant to a Permitted Acquisition that in the judgment of the Company’s management are not necessary or desirable to carry out the Company’s business plans, to the extent binding arrangements; (xii) Transfers agreements or letters of Borrower’s cash intent providing for such sales, transfers or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) other dispositions are entered into within 12 months after the liquidation, wind up or dissolution of any Subsidiary so long as all the assets acquisition of such liquidatingassets and
(viii) sales of Receivables pursuant to non-recourse (subject to customary indemnification obligations) factoring arrangements or similar arrangements, winding up but not pursuant to a securitization or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearfinancing arrangement.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) any of Borrower’s or any other Loan Party’s assets except (i) Permitted Licenses and the non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course case of business clauses (d) and which do not materially interfere with the business (e)(ii) of the Borrower and its Subsidiariesdefinition of Permitted Licenses, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal exclusive transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Propertyany non-U.S. Product Authorization in connection therewith; (iiiii) Transfers of worn-out, obsolete or surplus property property, including the abandonment or lapse of Intellectual Property that is not material to the business of Borrower and its Subsidiaries (each as determined by Borrower or the applicable Loan Party in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; (ixv) Transfers constituting Permitted Liens; (vi) Transfers permitted in Section 6.3, 6.4, 6.6 or 6.7 hereunder; (vii) Transfers of Accounts in connection with the sale compromise, settlement or discount without recourse collection thereof, including the forgiveness, release or compromise of accounts receivable arising any amount owed to Borrower or any of its Subsidiaries in the ordinary course of business business; (viii) Transfers of cash and Cash Equivalents in connection with the compromise transactions permitted hereunder; (ix) Transfers resulting from any casualty or collection thereofother insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Borrower or any Subsidiary; (x) the sale sales, transfers and other Transfers of property to the extent that (A) such property is exchanged for credit equivalent to fair market value against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers transfers of Investments in joint ventures assets, rights or property (1) among Loan Parties and (2) from any Subsidiary that is not a Loan Party to the extent required by, a Loan Party or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementsanother Subsidiary that is not a Loan Party; (xii) Transfers of Borrower’s cash or cash equivalents assets (other than material Intellectual Property) for purposes not prohibited hereunderfair consideration and in the ordinary course of its business; and (xiii) Transfers resulting from any settlement ofthe sale, transfer, issuance or payment other disposition of a de minimis number of shares of the equity interests of a Foreign Subsidiary in respect order to qualify members of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets governing body of such liquidating, winding up or dissolving Foreign Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearif required by applicable law.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property where such transaction is entered into in the ordinary course of business and consistent with past practices;
(ii) the disposition in the ordinary course of business of property that is obsolete, excess or no longer useful in the Borrower’s or its Subsidiaries’ businesses;
(iii) sales of Equity Interests in Subsidiaries of the Borrower to employees or the Borrower or its Subsidiaries; provided after taking into account such transactions the Borrower remains in compliance with Section 7.3(F);
(iv) the disposition or conversion in the ordinary course of business of Investments consisting of Cash Equivalents;
(v) leases, sales, assignments, transfers, conveyances or other dispositions of its Property that, together with all other Property of the Borrower and its Subsidiaries previously leased, sold or disposed of (other than transactions pursuant to clauses (i) through (iv) above) as permitted by this Section 7.3(A) during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not materially interfere with constitute a Substantial Portion of the business Property of the Borrower and its Subsidiaries; or
(vi) leases, taken as a wholesales, provided that assignments, transfers, conveyances or other dispositions of its Property (other than transactions pursuant to clauses (i) through (v) above) if: (a) such licenses transaction is for not less than fair market value, (b) with respect to any transaction in excess of Intellectual Property neither result in a legal transfer of title $25,000,000, not less than 80% of the licensed Intellectual Property nor have consideration received shall be cash or Cash Equivalents, and (c) the same effect as a sale lesser of (i) an amount equal to the net cash proceeds (including Cash Equivalents) from such Intellectual Property; transaction and (ii) Transfers the aggregate outstanding amount of worn-outthe Obligations is paid by the Borrower on the date of consummation of such transaction for application to the Obligations (and, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with which, the compromise Administrative Agent may (or collection thereof; (xshall at the request of the Required Lenders) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to notify the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value Aggregate Revolving Loan Commitment has been reduced by an amount not to exceed the amount of net cash proceeds (including Cash Equivalents) from such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property Inventory in the ordinary course of business;
(ii) Permitted Receivables Transfers;
(iii) the disposition in the ordinary course of business of Equipment that is obsolete, excess or no longer useful in the Borrower's and which do its Subsidiaries' business;
(iv) transfers of assets between the Borrower and any Controlled Subsidiary or between Controlled Subsidiaries of the Borrower not materially interfere with otherwise prohibited by this Agreement; PROVIDED, that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time;
(v) transfers of assets pursuant to Investments permitted by SECTION 7.3(D) and Restricted Payments permitted by SECTION 7.3(F);
(vi) the sale of the PET business unit of the Borrower and its Subsidiaries; PROVIDED, taken as a whole, provided that such licenses transaction (a) is for consideration consisting at least seventy-five percent (75%) of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; cash, (iib) Transfers of worn-out, obsolete or surplus property is for not less than fair market value (each as determined by the board of directors of the Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer of the Borrower's certificate delivered to the Administrative Agent), (c) the Net Cash Proceeds of which shall be paid in accordance with SECTION 2.5(B)(i)(a) and (d) is consummated when no Default has occurred and is continuing or would result therefrom;
(vii) the sale of all or part of the assets or business constituting the Aerospace business unit of the Borrower and its reasonable judgmentSubsidiaries in one or more transactions; PROVIDED, that (a) each such transaction (x) is for consideration consisting at least seventy-five percent (75%) of cash, (y) is for not less than fair market value (as determined by the board of directors of the Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer of the Borrower's certificate delivered to the Administrative Agent); , and (iiiz) [reserved]; is consummated when no Default has occurred and is continuing or would result therefrom, (ivb) Transfers constituting Permitted Liens; the PRO FORMA opening consolidated financial statements of the Borrower and its Subsidiaries shall demonstrate that the Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the Borrower's most recently completed fiscal quarter (vassuming the effectiveness of such sale on such last day of the Borrower's most recently completed fiscal quarter) Transfers permitted shall be less than or equal to the greater of (A) 3.0 to 1.0 and (B) the Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the Borrower's most recently completed fiscal quarter as set forth on the compliance certificate delivered together with the financial statements for such fiscal quarter pursuant to SECTION 7.1(A)(iii), and (c) the Net Cash Proceeds of which shall be paid in Section 6.6 hereunder; accordance with SECTION 2.5(B)(i)(a);
(viviii) Transfers leases that are operating leases under which the Borrower or any of Collateral (other than Intellectual Property) for fair consideration and its Subsidiaries is the lessor in the ordinary course of its businessbusiness that are not substantially equivalent to sales; and
(ix) sales, assignments, transfers, leases, conveyances or other dispositions of other assets, PROVIDED that any such transaction (a) is for consideration consisting at least seventy-five percent (75%) of cash, (b) is for not less than fair market value (as determined by the board of directors of the Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer of the Borrower's certificate delivered to the Administrative Agent), (c) when combined with all such other transactions pursuant to this CLAUSE (ix) (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than $100,000,000, and (ii) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than $300,000,000 and (d) the Net Cash Proceeds of which shall be paid in accordance with SECTION 2.5(B)(i)(a). Not less than five (5) Business Days prior to the consummation of any transaction permitted by CLAUSE (vi), (vii), or (ix) above, the Borrower shall deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying compliance with the requirements of CLAUSE (vi), (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) ), as applicable, and showing in reasonable detail the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) calculations on which such property certification is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearbased.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property Inventory in the ordinary course of business;
(ii) Permitted Receivables Transfers;
(iii) the disposition in the ordinary course of business of Equipment or other assets that are obsolete, excess or no longer useful in the Borrower's business;
(iv) transfers of assets between the Borrower and which do not materially interfere with the business any Controlled Subsidiary or between Controlled Subsidiaries of the Borrower not otherwise prohibited by this Agreement;
(v) transfers of assets pursuant to Investments permitted by Section 7.3(D) and its SubsidiariesRestricted Payments permitted by Section 7.3(F); and
(vi) sales, taken as a wholeassignments, transfers, leases, conveyances or other dispositions of other assets, provided that any such licenses transaction (a) is for consideration consisting at least 80% of Intellectual Property neither result in a legal transfer cash, (b) is for not less than fair market value (as determined by the board of title directors of the licensed Intellectual Property nor have the same effect as Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a sale resolution of such Intellectual Property; board of directors set forth in an Authorized Officer's certificate delivered to the Agent), and (c) when combined with all such other transactions pursuant to this clause (vi) (and clause (vii) of Section 7.3(B) under the Original Credit Agreement) (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than ten percent (10.0%) of the Borrower's Consolidated Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) Transfers during the period from the Original Closing Date to the date of wornsuch proposed transaction, represents the disposition of not greater than twenty percent (20.0%) of the Borrower's Consolidated Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into; provided, notwithstanding anything to the contrary, Net Cash Proceeds in excess of $5,000,000 during any 12-out, obsolete or surplus property month period shall be required to be paid as mandatory prepayments under the terms of Section 2.5. Not less than five (each as determined 5) Business Days prior to the consummation of any transaction permitted by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; clause (vi) Transfers above, the Borrower shall deliver to the Agent a certificate of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection an Authorized Officer certifying compliance with the compromise or collection thereof; (x) the sale requirements of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvivi) does not exceed $1,000,000 and showing in any fiscal yearreasonable detail the calculations on which such certification is based.
Appears in 1 contract
Samples: Credit Agreement (Printpack Inc)
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property Inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business and which do of Equipment that is obsolete, excess or no longer useful in the Borrower's or its Subsidiaries' businesses;
(iii) the sale, transfer, lease or other disposition of assets having a fair market value of not materially interfere greater than $5,000,000 in the aggregate in connection with the business of consolidation or closure by the Borrower and its Subsidiaries, taken as a whole, provided that such licenses Subsidiaries of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; branch locations;
(iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral assets for consideration after the Closing Date not greater than $10,000,000 in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment aggregate in respect of any property or casualty insurance claimwhich the Borrower shall commit to and, within six months, in the case of a sale of Equipment, or any condemnation proceeding relating twelve months, in the case of a sale of real property, of the receipt of the Net Cash Proceeds of such sale, use such Net Cash Proceeds to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the acquire assets of a like nature to those sold in such liquidatingsale in replacement thereof; and
(v) sales, winding up assignments, transfers, leases, conveyances or dissolving Subsidiary are transferred other dispositions of other assets if such transaction (a) is for consideration consisting at least ninety percent (90%) of cash, (b) is for not less than fair market value, and (c) when combined with all such other transactions (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than ten percent (10%) of the Borrower's Consolidated Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value date of such Transfers proposed transaction, represents the disposition of not greater than twenty percent (20%) of the Borrower's Consolidated Assets at the end of the fiscal year immediately preceding that in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearwhich such transaction is proposed to be entered into.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Borrower nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(i) nontransfers of assets between the Borrower and any wholly-exclusive licenses, sublicenses, leases owned Subsidiary of the Borrower or subleases between wholly-owned Subsidiaries of Intellectual Property the Borrower not otherwise prohibited by this Agreement;
(ii) sales of inventory in the ordinary course of business;
(iii) the disposition in the ordinary course of business and which do not materially interfere with of equipment that is obsolete, excess, or no longer used or useful in the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete Borrower's or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; any Subsidiary's business;
(iv) Transfers constituting Permitted Lienssales, transfers or assignments of Receivables in connection with receivables purchase facilities; PROVIDED, that the aggregate amount of Receivables Facility Attributed Indebtedness arising in connection therewith does not exceed amounts permitted under SECTION 7.3(A)(x); and
(v) Transfers permitted sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in Section 6.6 hereunder; good faith by the Borrower's management or board of directors) and (vib) Transfers when combined with all such other transactions (each such transaction being valued at book value) during the then current fiscal year, represents the disposition of Collateral (other assets with an aggregate book value not greater than Intellectual Property) for fair consideration and 15% of the aggregate book value of Consolidated Assets as of the end of the immediately preceding fiscal year. If the proceeds resulting from an Asset Sale are used by the Borrower or the applicable Subsidiary within 180 days of the date on which such proceeds arose to acquire property of a similar nature to be used in the ordinary course of its business; (vii) the sale Borrower's or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the such Subsidiary's ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents then, only for purposes of determining compliance with this SECTION 7.3(B)(v), such Asset Sale shall not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment be included in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeardetermination.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries, other than the Excluded Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property where such transaction is entered into in the ordinary course of business and consistent with past practices;
(ii) the disposition in the ordinary course of business of property that is obsolete, excess or no longer useful in the Borrower's or its Subsidiaries' businesses;
(iii) sales of Equity Interests in Subsidiaries of the Borrower to employees or the Borrower or its Subsidiaries, provided after taking into account such transactions the Borrower remains in compliance with Section 7.3(F);
(iv) the disposition or conversion in the ordinary course of business of Investments consisting of Cash Equivalents; and
(v) leases, sales, assignments, transfers, conveyances or other dispositions of its Property that, together with all other Property of the Borrower and its Subsidiaries previously leased, sold or disposed of (other than transactions pursuant to clauses (i) through (iv) above) as permitted by this Section 7.3(A) during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not materially interfere with constitute a Substantial Portion of the business Property of the Borrower and its Subsidiaries; and
(vi) leases, taken as a wholesales, provided that assignments, transfers, conveyances or other dispositions of its Property (other than transactions pursuant to clauses (i) through (v) above) if: (a) such licenses of Intellectual Property neither result in a legal transfer of title transaction is for not less than fair market value, (b) not less than 80% of the licensed Intellectual Property nor have consideration received shall be cash or Cash Equivalents, and (c) the same effect as a sale lesser of (i) an amount equal to the net cash proceeds (including Cash Equivalents) from such Intellectual Property; transaction and (ii) Transfers the aggregate outstanding amount of worn-outthe Obligations is paid by the Borrower on the date of consummation of such transaction for application to the Obligations (and, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with which, the compromise Administrative Agent may (or collection thereof; (xshall at the request of the Required Lenders) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to notify the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value Aggregate Revolving Loan Commitment has been reduced by an amount not to exceed the amount of net cash proceeds (including Cash Equivalents) from such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction.
Appears in 1 contract
Sales of Assets. SellNo Borrower shall, or shall permit any Borrower Subsidiary to, sell, assign, transfer, lease, license convey or otherwise dispose of any Property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(a “Transfer”a) any the sale of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property Inventory in the ordinary course of business and which do not materially interfere with the business (including sales of such Property among any of the Borrowers and the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of );
(b) the licensed Intellectual Property nor have the same effect as a sale of such Intellectual PropertyProperty for consideration not less than the Fair Market Value thereof and (i) with respect to sales not covered by clauses (ii) through (v) below, having an aggregate Fair Market Value not in excess of $10,000,000 in any Fiscal Year; (ii) Transfers in connection with the closure or relocation of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment)any facilities; (iii) [reserved]such sale is of the assets or the Capital Stock of the Australian Subsidiaries or the NMHG Mauritius Entities; (iv) Transfers constituting Permitted Liens; such sale is of the assets or Capital Stock of (vi) Transfers permitted in Section 6.6 hereunder; any Subsidiary that was a Subsidiary of NMHG Distribution as of the Closing Date (via “Distribution Subsidiary”) Transfers or (ii) a Borrower Subsidiary created after the Closing Date whose only assets at the time of Collateral formation consisted of assets acquired from a Distribution Subsidiary (other than Intellectual “Distribution Property”) for fair consideration and in whose only assets at the ordinary course time of its business; (vii) the sale consist of Distribution Property and assets acquired or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale originated in the ordinary course of business; or (ixv) plants and/or Property described on Schedule 9.02-B; provided, however, that (w) none of the Property subject to sales permitted by clauses (i), (ii) or (v) above shall constitute Collateral, (x) any non-cash consideration resulting from such sale (which shall be limited to not more than twenty-five percent (25.0%) of the total consideration for such sale) shall, to the extent received by a Credit Party, be pledged or assigned to the Administrative Agent pursuant to the applicable Security Documents to which it is a party, (y) such Borrower complies with the mandatory prepayment provisions set forth in Section 3.01(b) and the conditions to the release of Collateral described in Section 12.09(c) and (z) before and after giving effect to such sale, no Default or Event of Default shall have occurred and be continuing;
(c) the sale transfer of Property from any Borrower Subsidiary to any Credit Party, among any of the Credit Parties, or discount without recourse of accounts receivable arising among any Borrower Subsidiaries not constituting Credit Parties, in the ordinary course of business each case, otherwise in connection accordance with the compromise or collection thereof; Loan Documents;
(xd) the sale of property Investments in Cash Equivalents permitted pursuant to Section 9.04(a);
(e) (i) sales of Inventory by the Italian Receivables Seller to the extent UK Borrower pursuant to any agreement in form and substance satisfactory to the Administrative Agent, and sales of Receivables by the Italian Receivables Seller to the UK Borrower pursuant to the applicable Receivables Sale Agreement and (ii) sales and assignments of Receivables by the Netherlands Borrower to the UK Borrower pursuant to the applicable Receivables Sale Agreement; provided, that, with respect to Receivables or Inventory originated by the Italian Receivables Seller, at any time that (A) such property is exchanged for credit against Receivables or Inventory, as applicable, are included as Eligible Foreign Receivables or Eligible Foreign Inventory, as applicable, and, with respect to Receivables originated by the purchase price Netherlands Borrower, at all times, all actions under all applicable Requirements of similar replacement property or (B) Law required to perfect the proceeds UK Borrower’s ownership of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byReceivables and Inventory, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement ofas applicable, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolvingshall have been taken; and (xviii) sales and assignments of Receivables by the Netherlands Borrower to the UK Borrower pursuant to the Receivables Sale Agreements, provided, that all actions under the applicable Requirements of Law required to perfect the UK Borrower’s ownership of such Receivables and Inventory, if applicable, shall have been taken;
(f) the sale of Property permitted pursuant to Section 9.10 or in connection with transactions permitted in Section 9.09; and
(g) additional dispositions of Property other Transfers, provided that than Inventory and Receivables of the Credit Parties which may be approved by the Administrative Agent in its sole discretion and which result in Net Cash Proceeds of Sale of not more than $5,000,000 in the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed and $1,000,000 2,000,000 in any fiscal yearFiscal Year.
Appears in 1 contract
Samples: Credit Agreement (NMHG Holding Co)
Sales of Assets. SellNeither Borrower shall, nor shall either Borrower permit any of its Subsidiaries to sell, assign, transfer, exchange, lease, license convey or otherwise dispose of any Property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(a) the sale of Property having a “Transfer”Fair Market Value not exceeding $250,000 in any twelve (12) any of Borrower’s assets except month period for consideration not less than the Fair Market Value thereof so long as (i) any non-exclusive licensescash consideration resulting from such sale shall be pledged or assigned to the Administrative Agent, sublicensesfor the benefit of the Holders, leases pursuant to an instrument in form and substance acceptable to the Administrative Agent and (ii) the Borrowers comply with the mandatory prepayment provisions set forth in Section 4.01(b) and the conditions to the release of Collateral described in Section 13.09(c);
(b) the transfer of Property (i) from a Subsidiary of a Borrower to such Borrower or subleases (ii) from a Subsidiary of Intellectual Property a Borrower to another Subsidiary of such Borrower, provided that the Subsidiary transferee is a Guarantor;
(c) the sale (including, without limitation, sales on consignment), exchange or lease of Inventory in the ordinary course of business and which do not materially interfere with the business respective Borrower's or a Borrower's respective Subsidiary's respective businesses;
(d) the disposition of Equipment if (i) such Equipment is obsolete or no longer useful in the Borrower and its Subsidiariesordinary course of a Borrower's or such Subsidiary's business, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; or (ii) Transfers within six (6) months after such disposition, an amount equal to the proceeds therefrom is either (A) used to finance the purchase or lease of worn-out, obsolete replacement Equipment and the seller thereof delivers to the Administrative Agent evidence of such use and that the replacement Equipment is free and clear of all Liens except those created under the Loan Documents or surplus property (each as determined by Borrower in its reasonable judgment); (iiiB) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted delivered to the Administrative Agent for application to the repayment of the Obligations pursuant to the mandatory prepayment provisions set forth in Section 6.6 hereunder4.01(b);
(e) the sale of Investments in Cash Equivalents permitted pursuant to Section 10.04(a);
(f) the sale of Real Property of Adamx Xxxustries, Inc. which is located in Suffield, Connecticut, and Real
(g) the sale of the Investment described in Section 10.04(g);
(h) the sale of warrants for Capital Stock of Interactive Flight Technologies, Inc. received by Banner;
(i) the sale of Property permitted pursuant to Section 10.11;
(j) the sale of up to a fifty percent (50%) interest in the Capital Stock of Aero International, Inc. to RHI; and
(vik) Transfers the transfer of shares of the Capital Stock of FSBC and FSBC International to RHI in exchange for shares of Banner issued to RHI in consideration of the acquisition of such Capital Stock of FSBC and FSBC International as Permitted Acquisitions. Notwithstanding anything to the contrary in this Article X, any sale or transfer of Collateral (other than Intellectual Propertysales, assignments, transfers, exchanges, leases, conveyances, or other dispositions of Collateral described in this Section 10.02), either singly or in a series of related sales or transfers, having a value based upon the higher of its Total Book Value or appraised Fair Market Value in excess of (i) for fair consideration and $2,000,000, exclusive of such value of any Inventory consisting of consigned goods, or (ii) $3,000,000, inclusive of such value of any Inventory consisting of consigned goods, shall require the prior written approval of Lenders whose Pro Rata Shares, in the ordinary course of its business; aggregate, are at least eighty percent (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned80%); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.
Appears in 1 contract
Sales of Assets. SellExcept as permitted by Section 11.5, transferthe Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, license transfer or otherwise dispose of, including by way of merger (collectively a “TransferDisposition”) ), any assets, including capital stock of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as in one or a wholeseries of transactions, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; to any Person, other than:
(iia) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Dispositions in the ordinary course of business;
(b) Dispositions by the Guarantor to a Restricted Subsidiary or by a Restricted Subsidiary to the Guarantor or another Restricted Subsidiary; or
(ixc) Dispositions not otherwise permitted by Section 11.6(a) or (b), provided that:
(i) the sale aggregate net book value of all assets disposed of in any fiscal year pursuant to this Section 11.6(c) does not exceed 15% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; and
(ii) at the time of such Disposition and after giving effect thereto, no Default or discount without recourse Event of accounts receivable arising Default shall have occurred and be continuing. Notwithstanding the foregoing provisions of this Section 11.6, the Guarantor may, or may permit any Restricted Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in any of the ordinary course of business foregoing limitations or the computation contained in connection with the compromise or collection thereof; (xSection 11.6(c)(i) the sale of property to the extent that if:
(A) such property is exchanged for credit against assets are leased back by the purchase price Guarantor or any Restricted Subsidiary, as lessee, within 360 days of similar replacement property the original acquisition or construction thereof by the Guarantor or such Restricted Subsidiary; or
(B) the net proceeds from such Disposition are within 360 days of such Transfer are promptly Disposition:
(i) reinvested in productive assets used in carrying on the business of the Guarantor and its Restricted Subsidiaries having a fair value at least equal to the fair value of the assets subject to such Disposition; or
(ii) applied to the purchase price payment or prepayment of such replacement property; (xi) Transfers any outstanding Debt of Investments the Guarantor or any Restricted Subsidiary that is not subordinate in joint ventures right of payment to the extent required by, or made Notes. Any prepayment of Notes pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement this Section 11.6 shall be in accordance with its terms; (xv) the liquidationSections 9.2 and 9.4, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred without regard to the Borrower or another wholly owned Subsidiary minimum prepayment requirements of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection 9.2.
Appears in 1 contract
Sales of Assets. SellOn and after the Security Termination Date, the Borrower will not, and will not permit any of its Restricted Subsidiaries to, sell, transfer, lease, license lease or otherwise dispose of (in one transaction or in a “Transfer”series of transactions) any of Borrowerits assets or property, whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s assets except capital stock to any Person, except:
(i) non-exclusive licensesthe sale, sublicensestransfer or other disposition of obsolete, leases worn out or subleases of Intellectual Property surplus property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; business;
(ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; ;
(ixiii) the lease or sublease of real or personal property in the ordinary course of business;
(iv) sales, transfers, leases and other dispositions permitted by Section 6.03(a) (other than Section 6.03(a)(iv));
(v) the sale, transfer or other disposition of assets or property (including the sale or discount issuance of capital stock of any Restricted Subsidiary) (A) to the Borrower or any Subsidiary Guarantor, (B) between Restricted Subsidiaries that are not Subsidiary Guarantors and (C) subject to Section 6.04(d), of the Borrower or any Subsidiary Guarantor constituting Investments to any Restricted Subsidiary that is not a Subsidiary Guarantor;
(vi) sales or discounts without recourse (except in the case of accounts receivable clause (B), with respect to Standard Securitization Undertakings) of Accounts Receivable either
(A) arising in the ordinary course of business in connection with the compromise or collection thereofthereof or (B) in a transaction permitted by Section 6.14; and
(xvii) the sale sale, transfer or other disposition of other property or assets of the Borrower and the Restricted Subsidiaries for fair value; provided, that (A) the aggregate amount of such sales, transfers and other dispositions by the Borrower and the Restricted Subsidiaries, taken as a whole, during the period from the Security Termination Date until the Maturity Date pursuant to this clause (vii), shall not exceed, in the aggregate, 20% of the Consolidated Total Assets; provided, that, to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B1) the proceeds of any such Transfer sale, transfer or other disposition permitted under this Section 6.03(c)(vii)(A) are promptly applied reinvested in assets that are related to the purchase price business in which the Borrower and its Restricted Subsidiaries are permitted to be engaged under Section 6.03(b) within the period of twelve (12) months following such replacement propertysale, transfer or other disposition and (2) the amount of proceeds of all such sales, transfers or other dispositions that are subject to reinvestment do not at any one time exceed 20% of the Consolidated Total Assets, such sale, transfer or other disposition shall be excluded for purposes of computing the amount of sales, transfers and other dispositions made pursuant to Section 6.03(c)(vii)(A); (xi) Transfers of Investments in joint ventures provided, further, that, to the extent required bythat the Borrower or any Restricted Subsidiary has acquired any assets that are related to the business in which the Borrower and its Restricted Subsidiaries are permitted to be engaged under Section 6.03(b) during the period six months prior to such sale, transfer or made pursuant other disposition, then the proceeds of such sale, transfer or other disposition may be deemed to customary buy/sell arrangements between have been reinvested for the joint venture parties purpose of determining compliance with the preceding proviso and (B) at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the restrictions set forth in joint venture arrangements this Section 6.03 the divestiture or other disposition of specific assets and similar binding arrangements; (xii) Transfers property of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that its Restricted Subsidiaries pursuant to an order by any Governmental Authority shall be permitted to the extent such order is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that given by such Governmental Authority as a prerequisite to the aggregate fair market value receipt of such Transfers Governmental Authority’s approval in reliance on this clause connection with a pending Acquisition by the Borrower or any Restricted Subsidiary and the Borrower or such Restricted Subsidiary shall have repaid all Indebtedness (xviother than Indebtedness outstanding hereunder) does not exceed $1,000,000 in any fiscal yearassociated with the assets or property so divested or disposed (or such Indebtedness shall have been assumed by the purchaser of such assets or property).
Appears in 1 contract
Sales of Assets. SellExcept as permitted in Section 10.6, transferthe Company will not, leaseand will not permit any Subsidiary to, license sell, lease or otherwise dispose of any substantial part (as defined below) of the assets of the Company and its Subsidiaries; provided, however, that the Company or any Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Company and its Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “Transfer”substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on the business of Borrower’s the Company and its Subsidiaries and having a value at least equal to the value of such assets except sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Debt of the Company and/or its Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of the Make-exclusive licensesWhole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.5 shall be given to each holder of the Notes by written notice that shall be delivered not less than thirty (30) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date (the “Section 10.5 Prepayment Date”), sublicenses(ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than ten (10) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment (any holder who fails to so notify the Company within ten (10) Business Days of receipt of the notice of offer of prepayment shall be deemed to have rejected such offer). The Company shall prepay on the Section 10.5 Prepayment Date the Ratable Portion of each of Note held by the holders who have accepted such offer in accordance with this Section 10.5, leases together with accrued interest thereon to the date of such prepayment. As used in this Section 10.5, a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Company and its Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 20% of the book value of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Company and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-out, obsolete assets from the Company to any Subsidiary or surplus property (each as determined by Borrower in its reasonable judgment); from any Subsidiary to the Company or a Subsidiary and (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the any sale or other disposition transfer of Intellectual Property that Borrower determinesproperty Xxx Xxxxxxxx Freight Line, in its reasonable business judgment, is no longer desirable in Inc. Note Purchase Agreement acquired by the conduct of its business (including allowing any registrations Company or any applications for registration Subsidiary after the date of this Agreement to any intellectual Person within 270 days following the acquisition or construction of such property to lapse by the Company or go abandoned); (viii) any Subsidiary if the sale of inventory Company or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the a Subsidiary shall concurrently with such sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) transfer, lease such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearlessee.
Appears in 1 contract
Samples: Note Purchase Agreement (Old Dominion Freight Line Inc/Va)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Significant Subsidiaries shall consummate any Asset Sale, except:
(i) nontransfers of assets between the Company and any wholly-exclusive licenses, sublicenses, leases owned Subsidiary of the Company or subleases between wholly-owned Subsidiaries of Intellectual Property the Company not otherwise prohibited by this Agreement;
(ii) sales of inventory in the ordinary course of business;
(iii) the disposition in the ordinary course of business of equipment or property that is obsolete, excess, or no longer necessary, used or useful in the Company’s or any Subsidiary’s business or of any asset in exchange for, or the proceeds of which shall be used to acquire, any replacement asset necessary or useful in the business of the Company or any Subsidiary;
(iv) sales, transfers or assignments of Receivables in connection with receivables purchase facilities; provided, that the aggregate amount of Receivables Facility Attributed Indebtedness arising in connection therewith does not exceed amounts permitted under Section 7.3(A)(xiv);
(v) sales, transfers and which other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof consistent with past practice or other customary or reasonable business practices;
(vi) sales, transfers, leases and other dispositions of property that are (x) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business, (y) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with the Company or any Subsidiary (including in connection with an acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger or (z) another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Subsidiary, unless all Equity Interests in such Subsidiary are sold);
(vii) leases entered into in the ordinary course of business, and sale and leaseback transactions, in each case, to the extent that they do not materially interfere with the business of the Borrower Company and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of Subsidiaries and the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers assets and the related Indebtedness under any resulting Capitalized Lease would otherwise be permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); ;
(viii) the sale sales, transfers, licenses or sublicenses of inventory or collateral in the ordinary course of business and goods held for sale intellectual property in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property , to the extent that they do not materially interfere with the business of the Company and its Subsidiaries;
(Aix) such property is exchanged for credit against the purchase price dispositions resulting from any casualty or other damage to, or any taking under power of eminent domain or by condemnation or similar replacement proceeding of, any property or asset of the Company or any Subsidiary; and
(Bx) the proceeds contributions of such Transfer are promptly applied assets into Joint Ventures with an aggregate book value not to the purchase price of such replacement property; exceed $250,000,000;
(xi) Transfers the unwinding of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementsHedging Arrangements; and
(xii) Transfers sales, assignments, transfers, leases, conveyances or other dispositions of Borrower’s cash or cash equivalents other assets if (a) such transaction is for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate less than fair market value (as determined in good faith by the Company’s management or board of directors), (b) such Transfers in reliance transaction, when combined with all such other transactions pursuant to this Section 7.3(B)(xii) (each such transaction being valued at book value) during the then current fiscal year, represents the disposition of assets with an aggregate book value not greater than 15% of the aggregate book value of Consolidated Assets as of the end of the immediately preceding fiscal year and (c) until the occurrence of the Dispositions Covenant Trigger Date, immediately after giving effect to such transaction, no Default or Unmatured Default would exist and the Company would be permitted by the provisions of Section 7.4(A) to incur at least $1.00 of additional Indebtedness (determined on a pro forma basis based upon EBITDA for the Last Twelve-Month Period most recently ended for which financial statements have been delivered pursuant to Section 7.1(A)(i) or (ii)) (provided that, for the avoidance of doubt, upon the occurrence of the Dispositions Covenant Trigger Date this clause (xvic) does shall not exceed $1,000,000 in apply); provided, that if the net proceeds from any fiscal yearsuch sale, assignment, transfer, lease, conveyance or other disposition is applied to a Debt Prepayment Application or a Property Reinvestment Application within one year after such sale, assignment, transfer, lease, conveyance or other disposition, then such sale, assignment, transfer, lease, conveyance or other disposition, only for the purpose of determining compliance with clause (b) of this subsection (xii) as of any date, shall be deemed not to be an Asset Sale as of the date of such application.
Appears in 1 contract
Samples: Credit Agreement (Woodward, Inc.)
Sales of Assets. SellThe Borrower will not, transferand will not cause or permit any of its Subsidiaries to, sell, assign, License, lease, license convey, exchange, transfer or otherwise dispose of its Property (each, a “TransferDisposition”) (including, without limitation, any Capital Stock of any Subsidiary owned by the Borrower or another Subsidiary) to any other Person, except:
(a) Dispositions of Inventory in the ordinary course of business;
(b) Dispositions of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of Borrower’s assets except its Subsidiaries in the ordinary course of business;
(ic) non-exclusive licensesleases, sublicenseslicenses or sublicenses of real or personal property in the ordinary course of business, leases in each case subject to the Liens granted under the Note Documents;
(d) Investments in compliance with Section 9.5(b);
(e) Dispositions, settlements and writeoffs of accounts receivable in connection with the collection or subleases of Intellectual Property compromise thereof in the ordinary course of business and which do in an aggregate amount not materially interfere with the business to exceed $450,000 in any fiscal year;
(f) Dispositions of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (Ai) such property Property is exchanged for credit against the purchase price of similar replacement property or (Bii) the proceeds of such Transfer Disposition are reasonably promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments property and, in joint ventures to the extent required byeach case, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all Collateral Agent has a Lien with respect to such replacement property with the assets same priority as the Lien of such liquidating, winding up or dissolving Subsidiary are transferred Collateral Agent with respect to the Borrower Property disposed of;
(g) subject to Section 3.2(c)(ii), Dispositions which constitute, or another wholly owned Subsidiary which are subject to, a casualty event;
(h) Dispositions by any Loan Party to any other Loan Party; and
(i) (i) any lapse of Borrower Intellectual Property by any Loan Party that is not liquidating, winding up economically desirable in the conduct of the Loan Parties’ business or dissolving; (ii) any abandonment of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (xvi) other Transfersii)), provided that such lapse is not materially adverse to the aggregate fair market value interests of the Purchasers and such Transfers Intellectual Property is not then being used by the Loan Parties in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearthe ordinary course of business.
Appears in 1 contract
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of any property (a “Transfer”) including the stock of any of Borrower’s assets except Subsidiary), whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases Sales of Intellectual Property inventory in the ordinary course of business;
(ii) The disposition in the ordinary course of business of equipment that is obsolete, excess or no longer useful in the Borrower's or its Subsidiaries' business;
(iii) Permitted Receivables Transfers; and
(iv) Sales, assignments, transfers, leases, conveyances or other dispositions of other assets (including sales of stock of a Subsidiary) if such transaction (A) is for consideration consisting of at least 80% of cash, (B) is for not less than Fair Value, and which do (C) when combined with all such other transactions (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not materially interfere with the business greater than two percent (2.0%) of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title Borrower's Consolidated Tangible Assets at the end of the licensed Intellectual Property nor have the same effect as a sale of fiscal year immediately preceding that in which such Intellectual Property; transaction is proposed to be entered into, and (ii) Transfers during the period from the Original Closing Date to the date of worn-outsuch proposed transaction, obsolete represents the disposition of not greater than twenty percent (20.0%) of the Borrower's Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into; provided that no agreements supplemental to this Agreement entered into for the purpose of adding to or surplus property (each as determined by modifying this Subsection 7.3(b) or changing in any manner the rights of the Lenders or the Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder or waiving any Default hereunder; (vi) Transfers , shall be effective without the consent of Collateral (other than Intellectual Property) for fair consideration and Lenders whose Pro Rata Shares, in the ordinary course of its business; aggregate, are equal to or greater than eighty percent (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned80%); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal year.
Appears in 1 contract
Samples: Credit Agreement (Metals Usa Inc)
Sales of Assets. SellExcept as permitted in Section 10.2, transferthe Obligors will not, leaseand will not permit any Subsidiary to, license sell, lease or otherwise dispose of (a “Transfer”including by way of merger, consolidation or amalgamation) any substantial part (as defined below) of Borrower’s the assets except of the Obligors and its Subsidiaries; provided, however, that any Obligor or any Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Obligors and their Subsidiaries if such assets are sold in an arms-length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets (which shall not include acquiring any equity interests of any Person) used or useful in carrying on the business of the Company and its Subsidiaries and having a value at least equal to the value of such assets sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Indebtedness of the Obligors and/or their Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of Make-exclusive licensesWhole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.3 shall be given to each holder of the Notes by written notice that shall be delivered not less than thirty (30) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date, sublicenses(ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than ten (10) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment. A failure by a holder of Notes to notify the Company of its acceptance of an offer of prepayment pursuant to this Section 10.3 on or before the tenth (10th) Business Day preceding the proposed prepayment date shall be deemed a rejection of such offer of prepayment. As used in this Section 10.3, leases a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Obligors and their Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Obligors and their Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 20% of the book value of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Obligors and its Subsidiariestheir Subsidiaries (including sales or dispositions of worthless, taken as a wholedamaged or obsolete equipment), provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-out, obsolete assets from any Obligor to any Subsidiary or surplus property (each as determined by Borrower in its reasonable judgment); from any Subsidiary to any Obligor or another Subsidiary and (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers any sale or disposition of Collateral (other than Intellectual Property) for fair consideration and in property acquired by any Obligor or any Subsidiary after the ordinary course date of its business; (vii) this Agreement to any Person within 365 days following the acquisition or construction of such property by Obligor or such Subsidiary if an Obligor or such Subsidiary shall concurrently with such sale or other disposition of Intellectual Property that Borrower determinesdisposition, in its reasonable business judgmentlease such property, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearlessee.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(ia) non-exclusive licenseslicenses or sublicenses by the Company or its Subsidiaries of software, sublicensescustomer lists, leases or subleases of Intellectual Property in the ordinary course of business trademarks, service marks, patents, trade names and which do not materially interfere with the business of the Borrower copyrights and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; provided, that such licenses or sublicenses shall not interfere with the business of the Company or any such Subsidiary;
(ixb) transfers of assets between the sale Company and any wholly-owned Subsidiary of the Company or discount without recourse between wholly-owned Subsidiaries of accounts receivable arising the Company not otherwise prohibited by this Agreement; provided, that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any time; and
(c) sales, assignments, transfers leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the ordinary course Company’s board of business directors), and (b) when combined with all such other transactions (each such transaction being valued at book value) (i) during the immediately preceding twelve-month period, represents the disposition of not greater than fifteen percent (15%) of the Company’s Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the date hereof to the date of such proposed transaction, represents the disposition of not greater than twenty-five percent (25%) of the Company’s Consolidated Tangible Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into; and
(d) sales in connection with the compromise or collection thereofreorganization, restructuring and rationalization of the Company and its Subsidiaries; provided that the non-recurring expenses arising from such reorganization, restructuring and rationalization which are charged to operating expenses are charged during the first three (x3) the sale of property fiscal years following any Permitted Acquisition and do not exceed $5,000,000, on a pre-tax basis, with respect to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byany Permitted Acquisition, or made pursuant $10,000,000, on a pre-tax basis, in the aggregate. The aggregate amount by which the Net Proceeds received from all Asset Sales in any fiscal year of the Company exceed $5,000,000 shall be used to customary buy/sell arrangements between prepay or retire Senior Debt of the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with Company and/or its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other TransfersSubsidiaries, provided that the aggregate fair market value Company shall comply with the provisions of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection 8.7 hereof.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Schawk Inc)
Sales of Assets. SellThe Company will not, transferand will not permit any Subsidiary to, leasesell, license lease or otherwise dispose of any substantial part (as defined below) of the assets of the Company and its Subsidiaries; provided, however, that the Company or any Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial part of the assets of the Company and its Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and an amount equal to the net proceeds received from such sale, lease or other disposition (but only with respect to that portion of such assets that exceeds the definition of “Transfer”substantial part” set forth below) shall be used within 365 days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets (including equity interest in any Person that becomes a Subsidiary) used or useful in carrying on the business of Borrower’s the Company and its Subsidiaries and having a value at least equal to the value of such assets except sold, leased or otherwise disposed of; and/or
(2) to prepay or retire Senior Secured Indebtedness of the Company and/or its Subsidiaries, provided that (i) nonthe Company shall offer to prepay each outstanding Note in a principal amount which equals the Ratable Portion for such Note, and (ii) any such prepayment of the Notes shall be made at par, together with accrued interest thereon to the date of such prepayment, but without the payment of the Make-exclusive licensesWhole Amount. Any offer of prepayment of the Notes pursuant to this Section 10.6 shall be given to each holder of the Notes by written notice that shall be delivered not less than fifteen (15) days and not more than sixty (60) days prior to the proposed prepayment date. Each such notice shall state that it is given pursuant to this Section and that the offer set forth in such notice must be accepted by such holder in writing and shall also set forth (i) the prepayment date, sublicenses(ii) a description of the circumstances which give rise to the proposed prepayment and (iii) a calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which desires to have its Notes prepaid shall notify the Company in writing delivered not less than five (5) Business Days prior to the proposed prepayment date of its acceptance of such offer of prepayment. Prepayment of Notes pursuant to this Section 10.6 shall be made in accordance with Section 8.2 (but without payment of the Make-Whole Amount). As used in this Section 10.6, leases a sale, lease or subleases other disposition of Intellectual Property assets shall be deemed to be a “substantial part” of the assets of the Company and its Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Subsidiaries during the period of 12 consecutive months ending on the date of such sale, lease or other disposition, exceeds 10% of the book value of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided that there shall be excluded from any determination of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business and which do not materially interfere with the business of the Borrower Company and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers any transfer of worn-out, obsolete assets from the Company to any Subsidiary or surplus property (each as determined by Borrower in its reasonable judgment); from any Subsidiary to the Company or a Subsidiary and (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the any sale or other disposition transfer of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in property acquired by the conduct of its business (including allowing any registrations Company or any applications for registration Subsidiary after the date of this Agreement to any intellectual Person within 365 days following the acquisition or construction of such property to lapse by the Company or go abandoned); (viii) any Subsidiary if the sale of inventory Company or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the a Subsidiary shall concurrently with such sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) transfer, lease such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearlessee.
Appears in 1 contract
Sales of Assets. SellExcept as expressly provided in Subsection 13(d) and subject to the proviso below, transfer, lease, license or otherwise dispose of (a “Transfer”) any of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business upon receipt of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses proceeds of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that any Collateral, or if any Collateral is damaged, destroyed or taken by condemnation in whole or in part, the proceeds thereof (whether insurance or otherwise) shall be paid by such Borrower determinesto Lender immediately upon receipt thereof by such Borrower as a mandatory prepayment of the Term Loans, in such order as determined by Lender in its reasonable business judgmentsole discretion, is no longer desirable such payment to be applied against the remaining installments of principal in the conduct inverse order of their maturities until the Term Loans are repaid in full, and then against the other Liabilities, as determined by Lender in its business sole discretion; provided, however, that (including allowing any registrations or any applications for registration A) the proceeds of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; (ix) , including all collections of Accounts other than the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit Specified Over-120 Day Accounts, shall be applied against the purchase price of similar replacement property or Revolving Loans until the Revolving Loans are repaid in full, and then against the other Liabilities, as determined by Lender in its sole discretion, (B) the proceeds of such Transfer the Specified Over-120 Day Accounts shall be applied fifty percent (50%) against the Revolving Loans until the Revolving Loans are promptly repaid in full, and fifty percent (50%) against the Special Advance (and if received after September 30, 2003, then against the remaining installments of principal of the Special Advance in the inverse order of their maturities) until the Special Advance is repaid in full, and then against the other Liabilities, as determined by Lender in its sole discretion and (C) the Net Cash Proceeds (as defined in paragraph 3(o)(ii) of the Second Amendment) of the AMC Services Business shall be applied to as follows: (1) the purchase price first $500,000 against the Special Advance (and if received after October 30, 2003, against the remaining installments of such replacement propertyprincipal of the Special Advance in the inverse order of their maturities) (2) the next $100,000 on account of any subordinated indebtedness incurred under paragraph 4(a)(ix) of the Second Amendment; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv3) the liquidation, wind up or dissolution of any Subsidiary so long as all next $900,000 against the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolvingRevolving Credit Loans; and (xvi4) other Transfersthe remaining amount split 75% against the Special Advance (and if received after October 30, provided that 2003, against the aggregate fair market value remaining installments of such Transfers principal of the Special Advance in reliance on this clause the inverse order of their maturities) and 25% against the Revolving Loans."
(xvii) does not exceed $1,000,000 in any fiscal year.Section 2 of the Loan Agreement is amended by adding a new Subsection 2(l) thereof which shall read as follows:
Appears in 1 contract
Samples: Loan and Security Agreement (Am Communications Inc)
Sales of Assets. SellExcept as permitted by Section 10.5, transferthe Company will not, and will not permit any Restricted Subsidiary to, sell, lease, license transfer or otherwise dispose of, including by way of merger (collectively a “TransferDisposition”) ), any assets, including capital stock of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as in one or a wholeseries of transactions, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; to any Person, other than:
(iia) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Dispositions in the ordinary course of business;
(b) Dispositions by the Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary; or
(ixc) Dispositions not otherwise permitted by Section 10.6(a) or (b), provided that:
(i) the sale aggregate net book value of all assets disposed of in any fiscal year pursuant to this Section 10.6(c) does not exceed 15% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; and
(ii) at the time of such Disposition and after giving effect thereto, no Default or discount without recourse Event of accounts receivable arising Default shall have occurred and be continuing. Notwithstanding the foregoing provisions of this Section 10.6, the Company may, or may permit any Restricted Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in any of the ordinary course of business foregoing limitations or the computation contained in connection with the compromise or collection thereof; (xSection 10.6(c)(i) the sale of property to the extent that if:
(A) such property is exchanged for credit against assets are leased back by the purchase price Company or any Restricted Subsidiary, as lessee, within 360 days of similar replacement property the original acquisition or construction thereof by the Company or such Restricted Subsidiary; or
(B) the net proceeds from such Disposition are within 360 days of such Transfer are promptly Disposition:
(i) reinvested in productive assets used in carrying on the business of the Company and its Restricted Subsidiaries having a fair value at least equal to the fair value of the assets subject to such Disposition; or
(ii) applied to the purchase price payment or prepayment of such replacement property; (xi) Transfers any outstanding Debt of Investments the Company or any Restricted Subsidiary that is not subordinate in joint ventures right of payment to the extent required by, or made Notes. Any prepayment of Notes pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement this Section 10.6 shall be in accordance with its terms; (xv) the liquidationSections 8.2 and 8.4, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred without regard to the Borrower or another wholly owned Subsidiary minimum prepayment requirements of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection 8.2.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Material Subsidiaries shall consummate any Asset Sale, except:
(i) non-exclusive licenses, sublicenses, leases licenses or subleases of Intellectual Property in the ordinary course of business and which do sublicenses (but not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory any licensing rights) by the Company or collateral in the ordinary course its Material Subsidiaries of business software, customer lists, trademarks, service marks, patents, trade names and goods held for sale copyrights and other intellectual property in the ordinary course of business; provided, that such licenses or sublicenses shall not interfere with the business of the Company or any such Material Subsidiary;
(ixii) the sale or discount without recourse of accounts receivable arising disposition in the ordinary course of business of equipment that is obsolete, excess or no longer used or useful in connection with the compromise Company's or collection thereof; its Material Subsidiaries' businesses;
(xiii) the sale transfers of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements assets between the joint venture parties set forth in joint venture arrangements Company and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly wholly-owned Material Subsidiary of Borrower that the Company or between wholly-owned Material Subsidiaries of the Company not otherwise prohibited by this Agreement; and
(iv) sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for consideration consisting at least seventy-five percent (75%) of cash, (b) is for not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate less than fair market value (as determined in good faith by the Company's board of directors), and (c) when combined with all such other transactions (each such transaction being valued at net book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than [$__________] of the Company's Consolidated Tangible Assets determined as at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the date of such Transfers proposed transaction, represents the disposition of not greater than [$__________]; ; provided that it shall not constitute an Event of Default under this section 10.3(b) if such sale or other transfer of assets results in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeara Change of Control and the Company offers to prepay the Notes of all holders pursuant to section 8.3 and the Company prepays the Notes of all holders who elect to accept the Company's offer to prepay the Notes.
Appears in 1 contract
Samples: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Sales of Assets. SellNo Credit Party shall, nor shall permit any Credit Party Entity to, sell, assign, transfer, lease, license convey or otherwise dispose of any Property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(a “Transfer”a) any the sale of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property Inventory in the ordinary course of business and which do not materially interfere with the business (including sales of such Property among any of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of Credit Party Entities);
(b) the licensed Intellectual Property nor have the same effect as a sale of such Intellectual PropertyProperty for consideration not less than the Fair Market Value thereof and (i) with respect to sales not covered by clauses (ii) through (v) below, having an aggregate Fair Market Value not in excess of $15,000,000 in any twelve consecutive month period; (ii) Transfers in connection with the closure or relocation of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment)any facilities; (iii) [reserved]such sale is of the assets or the Capital Stock of the Australian Subsidiaries or the NMHG Mauritius Entities; (iv) Transfers constituting Permitted Lienssuch sale is of the assets or Capital Stock of any Distribution Subsidiary; or (v) Transfers permitted plants and/or Property described on Schedule 9.02-B; provided, however, that (x) any non-cash consideration resulting from such sale (which shall be limited to not more than twenty-five percent (25.0%) of the total consideration for such sale) shall, to the extent received by a Credit Party, be pledged or assigned to the Administrative Agent pursuant to the applicable Security Documents to which it is a party, (y) Borrower complies with the mandatory prepayment provisions set forth in Section 6.6 hereunder; (vi2.03(b) Transfers and the conditions to the release of Collateral described in Section 12.09(c) and (other than Intellectual Propertyz) for fair consideration before and in the ordinary course of its business; after giving effect to such sale, no Default shall have occurred and be continuing;
(viic) the sale transfer of Property from any Credit Party Entity to any Credit Party, among any of the Credit Parties, or other disposition of Intellectual Property that Borrower determinesamong Credit Party Entities not constituting Credit Parties, in its reasonable business judgmenteach case, is no longer desirable otherwise in accordance with the conduct of its business Loan Documents;
(including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viiid) the sale of inventory or collateral Investments in Cash Equivalents permitted pursuant to Section 9.04(a);
(e) (i) sales of Inventory by the ordinary course Italian Receivables Seller to NACCO UK pursuant to any agreement in form and substance satisfactory to the Administrative Agent, and sales of business Receivables by the Italian Receivables Seller to NACCO UK pursuant to the applicable Receivables Sale Agreement and goods held for sale in (ii) sales and assignments of Receivables by NACCO Netherlands to NACCO UK pursuant to the ordinary course applicable Receivables Sale Agreement; provided, that all actions under the applicable Requirements of business; Law required to perfect NACCO UK’s ownership of such Receivables and Inventory, if applicable, shall have been taken;
(ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (xf) the sale of property Property permitted pursuant to the extent that Section 9.10 or in connection with transactions permitted in Section 9.09;
(A) such property is exchanged for credit against the purchase price of similar replacement property or (Bg) the proceeds sale of such Transfer are promptly applied accounts receivable and related assets under any receivables factoring, discounting facility or receivables assignment facility by any Foreign Subsidiary in an aggregate amount not to exceed $10,000,000 outstanding at any time; and
(h) additional dispositions of Property other than Inventory and Receivables of the purchase price Credit Parties which may be approved by the Administrative Agent in its sole discretion and which result in Net Cash Proceeds of such replacement property; (xi) Transfers Sale of Investments not more than $5,500,000 in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed and $1,000,000 2,200,000 in any fiscal yearFiscal Year.
Appears in 1 contract
Sales of Assets. SellLessee will not, and will not permit any of its Significant Subsidiaries to, convey, sell, lease, transfer, lease, license or otherwise dispose of, or part with control of (whether in one transaction or a “Transfer”series of transactions) any assets (including any shares of Borrower’s assets except stock in any Subsidiary or other Person), except: LSI Trust No. 2001-A Participation Agreement
(i) non-exclusive licenses, sublicenses, leases Sales or subleases other dispositions of Intellectual Property inventory in the ordinary course of business;
(ii) Sales or other dispositions of assets in the ordinary course of business and which do have become worn out or obsolete or which are promptly being replaced;
(iii) Sales of accounts receivable to financial institutions not materially interfere affiliated with Lessee; provided that (A) the business discount rate shall not at any time exceed ten percent (10%), (B) the amount of all accounts receivable permitted to be sold in any fiscal quarter shall not exceed twenty percent (20%) of the Borrower consolidated accounts receivable of Lessee and its Subsidiaries, taken determined as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have last day of the same effect immediately preceding fiscal quarter (or fiscal year, as a sale of the case may be), and (C) the sole consideration received for such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; sales shall be cash;
(iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers Sales or other dispositions of Collateral (other than Intellectual Property) for fair consideration and in assets outside the ordinary course of its businessbusiness which do not constitute Substantial Assets (as defined below); and
(viiv) Sales or other dispositions of Lessee Permitted Investments. Provided, however, that the sale foregoing exceptions shall not be construed to permit any sales, leases, transfers or other disposals of any of the Equipment, except as expressly permitted by the Lease. For purposes of clause (v) above, a sale, lease, transfer or other disposition of Intellectual Property that Borrower determinesassets shall be deemed to be of "Substantial Assets" if such assets, when added to all other assets conveyed, sold, leased, transferred or otherwise disposed of by Lessee and its Subsidiaries in its reasonable business judgment, is no longer desirable in the conduct any period of its business four consecutive fiscal quarters (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral other than assets sold in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xviiii) does not above), shall exceed $1,000,000 in any ten percent (10%) of Consolidated Total Assets as determined as of the last day of the fiscal yearquarter of Lessee immediately preceding the date of determination.
Appears in 1 contract
Sales of Assets. SellNeither Holdings nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property Inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of equipment that is obsolete, excess or no longer useful in the Borrower's business;
(iii) sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for consideration consisting at least 75% of cash or Cash Equivalents, (b) is for not less than fair market value, and (c) when combined with all such other transactions (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of not greater than ten percent (10%) of the Borrower's Consolidated Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into, and (ii) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than twenty percent (20%) of the Borrower's Consolidated Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into;
(iv) the sale or issuance of any of the Capital Stock of a Subsidiary of the Borrower to the Borrower or its Subsidiaries which have executed and delivered a guaranty and security agreement satisfactory in form and substance to the Agent;
(v) transfers resulting from casualty or condemnation of property or assets;
(vi) licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases or other property in the ordinary course of business which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Borrower's business;
(iivii) Transfers of worn-out, obsolete consignment or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and similar arrangements in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); ;
(viii) the sale lease of inventory real or collateral personal property in the ordinary course of business and goods held business;
(ix) discounts or sale of overdue accounts receivable for sale collection in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; and
(x) the sale or other disposition of property assets to a Subsidiary that has executed and delivered a guaranty and security agreement satisfactory in form and substance to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearAgent.
Appears in 1 contract
Samples: Credit Agreement (FTD Corp)
Sales of Assets. SellThe Borrower shall not, transfer, lease, license or otherwise dispose of (a “Transfer”) and shall not permit any of Borrower’s assets except its Subsidiaries to, Dispose of any property, real, personal, or mixed, whether now owned or hereafter acquired, except:
(ia) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property inventory in the ordinary course of business and which do not materially interfere with the business granting of the Borrower and its Subsidiariesany option or other right to purchase, taken as a wholelease, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and otherwise acquire inventory in the ordinary course of its business; ;
(viib) Dispositions of property (other than any material portion of a Project) that is: (1) being replaced, (2) no longer commercially viable to maintain, or (3) non-material, obsolete, surplus, or worn-out, in each case, whether now owned or hereafter acquired;
(c) Dispositions of property by any Subsidiary to the Borrower or any other Subsidiary of the Borrower;
(d) Asset Sales (other than any Project Disposition) and Casualty Events, the Net Cash Proceeds of which are (i) reinvested within 180 days of such Asset Sale or Casualty Event in assets useful in the Business (or, if committed to be reinvested, within 90 days after the end of such 180-day period), or (ii) otherwise applied to repay the Loans;
(e) a Project Disposition (and all transactions in connection with such Project Disposition as contemplated by Exhibit G to the Borrower LLC Agreement) so long as the Net Cash Proceeds of each such Project Disposition are applied as required by Section 2.6(d);
(f) the sale use, sale, exchange, or other disposition Disposition of Intellectual Property money or Cash Equivalents in a manner that Borrower determines, in its reasonable business judgment, is no longer desirable in not prohibited by the conduct terms of its business this Agreement;
(including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viiig) the settlement or write-off of accounts receivable or sale of inventory or collateral in the ordinary course of business and goods held overdue accounts receivable for sale collection in the ordinary course of business; ;
(ixh) Dispositions constituting Restricted Payments permitted under Section 6.6;
(i) the sale or discount without recourse and lease-back of accounts receivable arising in the ordinary course equipment; and
(j) other Dispositions of business in connection with the compromise or collection thereof; personal property (xother than any portion of a Project) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) which does not exceed $1,000,000 in during any fiscal year.
Appears in 1 contract
Sales of Assets. SellNeither the Company nor any of its Subsidiaries shall consummate any Asset Sale unless (x) the Company shall have prepaid the outstanding Advances and reduced the Aggregate Revolving Loan Commitment, transferand the "Advances" under (and as defined in) the 5- Year Finance Facility Agreement and reduced the aggregate commitment thereunder, lease, license or otherwise dispose of in accordance with Sections 2.6 and 7.2(N) and (a “Transfer”y) any such Asset Sale shall be for not less than fair market value (as determined in good faith by the Company's chief financial officer) and for consideration consisting of Borrower’s assets except at least eighty percent (80%) of cash, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property Asset Sales in the ordinary course of business and which do not materially interfere connection with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; Receivables permitted under Section 7.3(A);
(ii) Transfers transfers of wornassets between the Company and any wholly-out, obsolete owned Subsidiary of the Company or surplus property (each as determined between wholly-owned Subsidiaries of the Company not otherwise prohibited by Borrower in its reasonable judgment); this Agreement;
(iii) [reserved]; sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in good faith by the Company's chief financial officer), and (b) when combined with all such other transactions (each such transaction being valued at book value) and all Sale and Leaseback Transactions (each such Sale and Leaseback Transaction being valued at book value) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of not greater than fifteen percent (15%) of the Company's Consolidated Net Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into;
(iv) Transfers constituting Permitted LiensAsset Sales pursuant to unrelated transactions in an amount not to exceed $1,000,000 per transaction; and
(v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers sales of Collateral (other than Intellectual Property) for fair consideration notes receivable and in lease receivables of the ordinary course of Company and its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale 101 Subsidiaries in the ordinary course of business, including without limitation, those listed on Schedule 7.3(B); (ix) provided, that in no event shall any Asset Sale be permitted hereunder if a Default or Unmatured Default shall have occurred and is continuing as of the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds date of such Transfer are promptly applied to Asset Sale or, after the purchase price consummation of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byAsset Sale and after giving effect thereto, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearwould exist.
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (American National Can Group Inc)
Sales of Assets. SellNo member of the Xxxxx Karan Group shall sell, assign, transfer, lease, license license, convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except assets, whether now owned or hereafter acquired, or any income or profits there- from, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixii) the sale disposition of Equipment if such Equipment is obsolete or discount without recourse of accounts receivable arising no longer useful in the ordinary course of such Borrower's business;
(iii) sales of assets with an aggregate market value not in excess of Two Million Dollars ($2,000,000) in any rolling twelve (12) month period for all Borrowers;
(iv) sub-licensing of the trademarks pursuant to the terms of the License Agreement in connection with any business in which a Borrower is engaged at such time, together with the sale of any inventory in connection with such sub-licensing, or the sale of a Subsidiary of Xxxxx Karan International (other than Xxxxx Karan Studio); provided that (A) the business in connection with such sub-licensing or such Subsidiary did not generate revenues for the compromise or collection thereof; twelve month period ending on the last day of the immediately preceding fiscal quarter greater than the lesser of (xI) 10% of the sale of property to the extent that revenues for Xxxxx Karan International and its Subsidiaries on a consolidated basis for such period and (AII) such property is exchanged for credit against the purchase price of similar replacement property or $60,000,000 and (B) the proceeds consideration for such sub-licensing and sale of inventory or for such Transfer are promptly applied sale of a Subsidiary is equivalent to the purchase price fair market value thereof; and
(v) the sub-licensing of such replacement property; (xi) Transfers of Investments in joint ventures the trademarks pursuant to the extent required byterms of the License Agreement in connection with any business in which no Borrower participates at such time, or made pursuant to customary buy/sell arrangements between together with the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect sale of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement inventory in accordance connection with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transferssub-licensing, provided that the aggregate consideration for such sub-licensing and sale of inventory is equivalent to the fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearthereof.
Appears in 1 contract
Sales of Assets. SellThe Borrower will not, transferand will not cause or permit any of its Subsidiaries to, sell, assign, License, lease, license convey, exchange, transfer or otherwise dispose of its Property (each, a “TransferDisposition”) (including, without limitation, any Capital Stock of any Subsidiary owned by the Borrower or another Subsidiary) to any other Person, except:
(a) Dispositions of Inventory in the ordinary course of business;
(b) Dispositions of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of Borrower’s assets except its Subsidiaries in the ordinary course of business;
(c) leases, non-exclusive licenses or sublicenses of real or personal property in the ordinary course of business, in each case subject to the Liens granted under the Note Documents;
(d) Investments in compliance with Section 9.5(b) and Dispositions permitted by clause (b) of Section 9.3;
(e) Dispositions, settlements and writeoffs of (i) non-exclusive licenses, sublicenses, leases accounts receivable that are covered by the Accounts Receivable Insurance Policy in connection with the collection or subleases of Intellectual Property compromise thereof in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete accounts receivable that are not covered by the Accounts Receivable Insurance Policy in connection with the collection or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral compromise thereof in the ordinary course of business and goods held for sale in the ordinary course an aggregate amount not to exceed $500,000 in any fiscal year with respect to this clause (ii);
(f) Dispositions of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property Property to the extent that (Ai) such property Property is exchanged for credit against the purchase price of similar replacement property or (Bii) the proceeds of such Transfer Disposition are reasonably promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments property and, in joint ventures to the extent required byeach case, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all Collateral Agent has a Lien with respect to such replacement property with the assets same priority as the Lien of such liquidatingCollateral Agent with respect to the Property disposed of;
(g) subject to Section 3.2(c)(ii), winding up Dispositions which constitute, or dissolving which are subject to, a Casualty Event;
(h) Dispositions by (i) any Loan Party to any other Loan Party and (ii) by any Subsidiary are transferred that is not a Loan Party to the Borrower or another wholly owned any other Subsidiary of Borrower the Borrower;
(i) (i) any lapse of Intellectual Property by any Loan Party that is not liquidatingeconomically desirable in the conduct of the Loan Parties’ business or (ii) any abandonment, winding up cancellation, non-renewal or dissolving; discontinuance of Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (xviii)), such lapse is not materially adverse to the interests of the Purchasers and such Intellectual Property is not then being used by the Loan Parties in the ordinary course of business; and
(j) Any exchange, disposition or other Transferstransfer of Cash Equivalents in a substantially contemporaneous exchange in the same jurisdiction for receipt of cash or other Cash Equivalents of an equivalent value to the exchanged, provided that the aggregate fair market value disposed of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearor transferred Cash Equivalents.
Appears in 1 contract
Sales of Assets. SellThe Company covenants that it will not, transfer, lease, license or otherwise dispose of (a “Transfer”) and will not permit any of Borrower’s assets except its Restricted Subsidiaries to, Dispose of its Property (including, without limitation, subject to compliance with paragraphs 6G and 6I as applicable, shares of capital stock of a Restricted Subsidiary and Property Disposed of pursuant to a Sale and Lease-back Transaction) except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale sales of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business;
(ii) if no Default or Event of Default exists following such Disposition
(a) Dispositions from any Restricted Subsidiary to the Company or any other Restricted Subsidiary; and
(ixb) the sale or discount without recourse Dispositions of accounts receivable arising in the ordinary course of business in connection Property with an Asset Percentage Value, when combined with the compromise or collection thereof; (x) the sale Asset Percentage Value of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made any other Property Disposed pursuant to customary buy/sell arrangements between this clause (b) during the joint venture parties set forth in joint venture arrangements preceding four consecutive fiscal quarters of the Company, of not more than 10% and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) consideration representing the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers Property at the time of such Disposition, provided, that, any such Disposition or portion thereof shall be excluded from the aforesaid Asset Percentage Value test if either (x) the Disposition Proceeds arising from such Disposition are applied immediately after receipt thereof to one or more of the Designated Applications, or (y) an amount equal to the Disposition Proceeds shall be available to the Company from binding commitments (subject to no conditions which the Company is unable to meet) from responsible financial institutions pending application within a period of not more than 180 days to one or more of the Designated Applications; and provided, further that to the extent that the entire Disposition Proceeds in reliance on this clause (xvi) does not exceed $1,000,000 in respect of any fiscal year.Disposition are applied only partially to the foregoing purposes, such Disposition shall be disregarded for purposes of determining such Asset Percentage Value to the extent of such application; and
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Movado Group Inc)
Sales of Assets. SellNeither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property where such transaction is entered into in the ordinary course of business and consistent with past practices;
(ii) the disposition in the ordinary course of business of property that is obsolete, excess or no longer useful in the Borrower's or its Subsidiaries' businesses;
(iii) sales of Equity Interests in Subsidiaries of the Borrower to employees or the Borrower or its Subsidiaries; provided after taking into account such transactions the Borrower remains in compliance with Section 7.3(F);
(iv) the disposition or conversion in the ordinary course of business of Investments consisting of Cash Equivalents; and
(v) leases, sales, assignments, transfers, conveyances or other dispositions of its Property that, together with all other Property of the Borrower and its Subsidiaries previously leased, sold or disposed of (other than transactions pursuant to clauses (i) through (iv) above) as permitted by this Section 7.3(A) during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not materially interfere with constitute a Substantial Portion of the business Property of the Borrower and its Subsidiaries; and
(vi) leases, taken as a wholesales, provided that assignments, transfers, conveyances or other dispositions of its Property (other than transactions pursuant to clauses (i) through (v) above) if: (a) such licenses transaction is for not less than fair market value, (b) with respect to any transaction in excess of Intellectual Property neither result in a legal transfer of title $10,000,000, not less than 80% of the licensed Intellectual Property nor have consideration received shall be cash or Cash Equivalents, and (c) the same effect as a sale lesser of (i) an amount equal to the net cash proceeds (including Cash Equivalents) from such Intellectual Property; transaction and (ii) Transfers the aggregate outstanding amount of worn-outthe Obligations is paid by the Borrower on the date of consummation of such transaction for application to the Obligations (and, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with which, the compromise Administrative Agent may (or collection thereof; (xshall at the request of the Required Lenders) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to notify the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value Aggregate Revolving Loan Commitment has been reduced by an amount not to exceed the amount of net cash proceeds (including Cash Equivalents) from such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Borrower nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(i) nontransfers of assets between the Borrower and any wholly-exclusive licenses, sublicenses, leases owned Subsidiary of the Borrower or subleases between wholly-owned Subsidiaries of Intellectual Property the Borrower not otherwise prohibited by this Agreement;
(ii) sales of inventory in the ordinary course of business;
(iii) the disposition in the ordinary course of business and which do not materially interfere with of equipment that is obsolete, excess, or no longer used or useful in the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete Borrower’s or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; any Subsidiary’s business;
(iv) Transfers constituting Permitted Lienssales, transfers or assignments of Receivables in connection with receivables purchase facilities; provided, that the aggregate amount of Receivables Facility Attributed Indebtedness arising in connection therewith does not exceed amounts permitted under Section 7.3(A)(x); and
(v) Transfers permitted sales, assignments, transfers, leases, conveyances or other dispositions of other assets if such transaction (a) is for not less than fair market value (as determined in Section 6.6 hereunder; good faith by the Borrower’s management or board of directors) and (vib) Transfers when combined with all such other transactions (each such transaction being valued at book value) during the then current fiscal year, represents the disposition of Collateral (other assets with an aggregate book value not greater than Intellectual Property) for fair consideration and 15% of the aggregate book value of Consolidated Assets as of the end of the immediately preceding fiscal year. If the proceeds resulting from an Asset Sale are used by the Borrower or the applicable Subsidiary within 180 days of the date on which such proceeds arose to acquire property of a similar nature to be used in the ordinary course of its business; (vii) the sale Borrower’s or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the such Subsidiary’s ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents then, only for purposes of determining compliance with this Section 7.3(B)(v), such Asset Sale shall not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment be included in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeardetermination.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of (a “Transfer”) Neither the Company nor any of Borrower’s assets except its Subsidiaries shall consummate any Asset Sale, except:
(ia) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property inventory in the ordinary course of business;
(b) the Disposition in the ordinary course of business and which do not materially interfere with of equipment that is obsolete, excess or no longer used or useful in the business Company’s or its Subsidiaries’ businesses;
(c) (i) Dispositions of assets between Loan Parties, or from a Subsidiary of the Borrower and its Subsidiaries, taken as Company that is not a whole, provided that such licenses of Intellectual Property neither result in Loan Party to a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual PropertyLoan Party; (ii) Transfers Dispositions of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); assets from a Subsidiary of the Company that is not a Loan Party to a Subsidiary of the Company that is not a Loan Party and (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers Dispositions of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral assets in the ordinary course of business from a Loan Party to a Subsidiary of the Company that is not a Loan Party and goods held for sale not otherwise prohibited by this Agreement in an aggregate amount not to exceed $50,000,000 from and after the ordinary course of business; Amendment No. 3 Closing Date;
(ixd) the sale or discount without recourse of accounts receivable arising in the ordinary course of business Permitted Sale and Leaseback Transactions;
(e) Dispositions in connection with Project Bluefin;
(f) other leases, sales or other Dispositions of assets not otherwise permitted by this Section 7.02 if such transaction (i) is for consideration consisting at least eighty percent (80%) of cash, (ii) is for not less than fair market value (as determined in good faith by the compromise Company’s board of directors), and (iii) involves assets that, together with all other assets of the Company and its Subsidiaries previously leased, sold or collection thereof; disposed of (other than pursuant to clauses (a) through (e) above) as permitted by this Section 7.02 (x) during the twelve-month period ending with the month in which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of property the assets of the Company and its Subsidiaries and (y) since the Closing Date do not exceed fifteen percent (15%) of consolidated tangible assets of the Company and its Subsidiaries, in each case when combined with all such other transactions during such period (each such transaction being valued at book value); and
(g) Dispositions in connection with Project Jazz; provided, however, that all of the cash proceeds received from the divestiture in connection with Project Jazz shall be promptly (but in any event within 30 days upon such receipt of proceeds), and on a pro rata basis based on outstanding balances as of the last day of the fiscal quarter immediately preceding the consummation of Project Jazz, used to prepay (1) syndicated term loans, Committed Loans (as defined therein) under either or both of the Existing 2013 Revolving Credit Agreement and Existing 2015 Revolving Credit Agreement and/or outstanding amounts owing under any bilateral revolving credit facility (collectively, “Bank Debt”), on the one hand, and (2) certain outstanding amounts owing under the NPA Notes, on the other hand, in each case, as determined by the Company and reasonably satisfactory to the extent Administrative Agent, it being agreed and understood that (Ai) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds any portion of such Transfer are promptly proceeds to be applied to the purchase price NPA Notes may be first applied to Bank Debt consisting of revolving loans and, subject to the terms of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byrevolving loans, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents reborrowed for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement prepaying the NPA Notes in accordance with its their terms; , and (xvii) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets portion of such liquidatingproceeds offered to, winding up or dissolving Subsidiary are transferred but declined by, the holders of the NPA Notes may be used to prepay Bank Debt, as determined by the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearCompany.
Appears in 1 contract
Sales of Assets. SellNeither the Parent nor any of its Subsidiaries shall sell, assign, transfer, lease, license convey or otherwise dispose of any property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(a “Transfer”a) any sales of Borrower’s assets except inventory in the ordinary course of business;
(ib) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property the disposition in the ordinary course of business and which do not materially interfere with of equipment that is obsolete, excess or no longer used or useful in the business of the Borrower and Parent’s or its Subsidiaries’ businesses;
(c) any Permitted Receivables Transfer in connection with a Permitted Receivables Facility;
(d) sales, taken as transfers or other dispositions of property to a wholeLoan Party or a Parent Credit Agreement Subsidiary Guarantor; and
(e) sales, provided transfers or other dispositions of property of a Subsidiary that such licenses of Intellectual Property neither result in is not a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral Parent Credit Agreement Subsidiary Guarantor (other than Intellectual Propertythe Borrower) for fair consideration and in the ordinary course of its business; to another Subsidiary that is not a Parent Credit Agreement Subsidiary Guarantor;
(viif) the sale Parent and its Subsidiaries may enter into, terminate or modify leases, subleases, licenses and sublicenses of technology and other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business property (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viiiA) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) between or among any Loan Parties and any of their Subsidiaries (or any combination thereof);
(g) the proceeds sale, transfer or other disposition of such Transfer patents, trademarks, copyrights and other intellectual property which, in the reasonable judgment of the Parent or any of its Subsidiaries, are promptly applied determined to be uneconomical, negligible, unused or obsolete in the purchase price conduct of such replacement propertybusiness;
(h) the Parent and its Subsidiaries may incur Liens permitted under Section 6.03; and
(xii) Transfers sales, assignments, transfers, leases, conveyances or other dispositions of Investments in joint ventures to the extent required by, or made other assets (other than pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; clauses (xiia) Transfers of Borrower’s cash or cash equivalents through (h) above) if such transaction (i) is for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement ofless than fair market value, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xviii) when combined with all such other Transfers, provided transactions (each such transaction being valued at book value) occurring during the fiscal year in which such proposed transaction occurred represents the disposition of not greater than fifteen percent (15%) of the Parent’s Consolidated Assets (such Consolidated Assets being calculated for the end of the fiscal year immediately preceding that the aggregate fair market value of in which such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yeartransaction is proposed to be entered into).
Appears in 1 contract
Sales of Assets. SellExcept as permitted by Section 10.9, transferthe Company will not, and will not permit any Restricted Subsidiary to, sell, lease, license transfer or otherwise dispose of, including by way of merger (collectively, a “TransferDisposition”) ), any property, including equity interests of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a wholein one or more transactions, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-outto any Person, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property(a) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Dispositions in the ordinary course of business; , (ixb) Dispositions by the Company or a Restricted Subsidiary to the Company or to a Restricted Subsidiary, (c) the sale or discount without recourse Disposition described on Schedule 10.8, (d) the Disposition of accounts receivable arising the outstanding equity interests of The Select Carrier Group L.P., a Delaware limited partnership, and its general partner Select Carrier Group LLC, a Delaware limited liability company (collectively, the “Select Carrier Group”), provided that in the ordinary course case of business the Disposition of the Select Carrier Group, and irrespective of whether or not all or any portion of such Disposition would be permitted pursuant to clause (e) of this paragraph, the Company shall apply 100% of the net proceeds thereof in connection with excess of $10,000,000 to the compromise payment or collection thereof; prepayment of outstanding Debt in the manner set forth in clause (xii) of the following paragraph or (e) other Dispositions not otherwise permitted by this Section 10.8, provided that (1) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (2) the sale aggregate net book value of all property so disposed of in any fiscal year pursuant to this Section 10.8(e) would not exceed 10% of Consolidated Total Assets as of the end of the immediately preceding fiscal year. Notwithstanding the foregoing, the Company may, or may permit any Restricted Subsidiary to, make a Disposition of property acquired or constructed by the Company or any Restricted Subsidiary and such property shall not be subject to or included in the foregoing limitation and computation contained in Section 10.8(e) of the preceding paragraph to the extent extent, and from the date, that the net proceeds from such Disposition are, within 365 days of such Disposition, either (Ai) reinvested in productive assets by the Company or a Restricted Subsidiary to be used in the principal business of the Company or such property is exchanged for credit against Restricted Subsidiary and, if required by Section 9.10 or the purchase price Security Documents, such productive assets are concurrently subjected to the Lien of similar replacement property the Security Documents or (Bii) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, payment or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect prepayment of any property outstanding Debt of the Company or casualty insurance claimits Restricted Subsidiaries other than outstanding Subordinated Debt, or any condemnation proceeding relating provided that in the course of making such application the Company shall offer to any asset; (xiv) termination or unwinding of any Swap Agreement prepay each outstanding Note in accordance with its terms; (xv) Section 8.6 in a principal amount which equals the liquidationRatable Portion for such Note. If any holder of a Note fails to accept such offer of prepayment, wind up then the Company shall prepay or dissolution pay or cause to prepay or pay additional Debt of any Subsidiary so long as all the assets of such liquidatingCompany or the Restricted Subsidiaries, winding up or dissolving Subsidiary are transferred other than Subordinated Debt, in an amount equal to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of Ratable Portion for such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearNote.
Appears in 1 contract
Samples: Note Purchase Agreement (Egl Inc)
Sales of Assets. SellNo Borrower shall sell, assign, transfer, lease, license --------------- convey or otherwise dispose of (a “Transfer”) any of Borrower’s assets except property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except:
(i) non-exclusive licenses, sublicenses, leases or subleases sales of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determines, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale Inventory in the ordinary course of business; ;
(ixii) the sale disposition of obsolete Equipment in the ordinary course of business;
(iii) transfers of assets pursuant to Investments permitted by Section 6.3(D) and Restricted Payments permitted by Section 6.3(F); -------------- --------------
(iv) Sale and Leaseback Transactions which, in the aggregate for all Borrowers in any fiscal year, involve assets with a book value not greater than $1,000,000 ("PERMITTED SALE AND LEASEBACKS");
(v) sales of assets from one Borrower to another;
(vi) sales, dispositions or discount without recourse other transfers of accounts receivable arising Receivables to Allied Carriers, Inc. (or such other factoring company on terms reasonably acceptable to the Agent) by any Borrower in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property an aggregate amount for all Borrowers not to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 10,000,000 in any fiscal year; and
(vii) sales, assignments, transfers, leases, conveyances or other dispositions of other assets, provided that any such transaction (a) is -------- for all cash consideration, (b) is for not less than fair market value (as determined by the board of directors of the applicable Borrower in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of such board of directors set forth in an Authorized Officer's certificate delivered to the Agent), and (c) when combined with all such other transactions pursuant to this clause (iv) ----------- (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the disposition of assets aggregating not more than $300,000, and (ii) during the period from the Closing Date to the date of such proposed transaction, represents the disposition of assets aggregating not more than $1,000,000. Not fewer than five (5) Business Days prior to the consummation of any transaction permitted by clause (iv) above, the Borrowers shall deliver to the ----------- Agent a certificate of an Authorized Officer certifying compliance with the requirements of clause (iv) and showing in reasonable detail the calculations on ----------- which such certification is based.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license assign, transfer or otherwise dispose of (a “Transfer”) any of Borrower’s assets except the Collateral; provided, however, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom: (ia) non-exclusive licenses, sublicenses, leases or subleases a Loan Party may dispose of Intellectual Property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and Inventory in the ordinary course of its business; , (viib) the sale a Loan Party may dispose of excess, obsolete or other disposition of Intellectual Property that Borrower determinesused Equipment so long as, in its reasonable business judgment, is no longer desirable in if so required for the conduct of its such Loan Party's business in any material respect, any such Equipment is replaced with other Equipment which serves the same or a similar purpose as the replaced Equipment, (including allowing any registrations or any applications for registration c) a Loan Party may otherwise dispose of any intellectual property Collateral which does not, together with all other Collateral disposed of by the Loan Parties after the date of this Agreement (excluding Collateral permitted to lapse or go abandonedbe disposed of under the immediately preceding clauses (a) and (b); ), have an aggregate book value in excess of $10,000,000 and (viiid) the sale Loan Parties may effect the Seramed Disposition so long as (i) the Agent and each Lender shall have received prior to the consummation of inventory such Disposition (or collateral initial transaction in the ordinary course case of business a series of related transactions) a pro forma balance sheet, statement of operations and goods held statement of cash flows for sale the Borrower and its Consolidated Subsidiaries after giving pro forma effect to such Disposition for the four fiscal quarter period most recently ended and for the immediately following four fiscal quarter period (the "Subsequent Pro Forma Statements"), all such financial statements to be in form and substance satisfactory to the Agent, (ii) the increase, if any, in the ordinary course amount by which EBITDA is reduced giving pro forma effect to the Seramed Disposition as determined from the Subsequent Pro Forma Statements compared to the amount by which EBITDA is reduced giving pro forma effect to the Seramed Disposition as determined by reference to the pro forma financial statements of business; (ix) the sale or discount without recourse of accounts receivable arising Borrower and its Subsidiaries contained in the ordinary course Confidential Offering Memorandum dated June 1999 distributed to the Lenders, does not exceed $5,000,000 and (iii) no Default or Event of business Default has occurred and is continuing or would occur after giving effect to such Disposition. Notwithstanding anything else contained herein or in the other Credit Documents, consummation of the Seramed Disposition in accordance with this Section, or other Dispositions permitted under this Section, shall not constitute a breach or Event of Default hereunder or under the other Credit Documents. In addition, upon the consummation of the Seramed Disposition in accordance with this Section, or other Dispositions permitted under this Section, the Agent and the Lenders shall, at the sole cost and expense of the Borrower, take all actions and execute all documents (x) necessary to release all Liens and Collateral relating to Seramed and its Subsidiaries and release such Persons as parties from the Credit Documents or (y) as the Borrower may otherwise reasonably request in connection with the compromise or collection thereof; (x) consummation of the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required bySeramed Disposition, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on Dispositions permitted under this clause (xvi) does not exceed $1,000,000 in any fiscal yearSection.
Appears in 1 contract
Samples: Credit Agreement (Serologicals Corp)
Sales of Assets. Sell(a) Borrower shall not, and shall not permit any of its Subsidiaries to, sell, transfer, lease, license convey or otherwise dispose of (a “Transfer”) any of Borrower’s its assets except or properties; PROVIDED, HOWEVER, that the foregoing shall not prohibit:
(i) non-exclusive licensesthe sale of surplus or obsolete equipment and fixtures or transfers resulting from any casualty or condemnation of assets or properties, sublicenses, leases PROVIDED that if the proceeds of such sales or subleases of Intellectual Property transfers exceed $250,000 in any one instance or $3,000,000 in the ordinary course of business and which do not materially interfere aggregate, Borrower shall, within 90 days thereafter, prepay the Loans in accordance with the business provisions of Section 2.4(b) hereof, in an aggregate amount equal to the Borrower and its Subsidiaries, taken as a whole, provided that excess (the "Net Sales Proceeds") of (x) the entire proceeds of any such licenses of Intellectual Property neither result in a legal single sale or transfer of title of exceeding $250,000 (or the licensed Intellectual Property nor have the same effect as a sale amount of such Intellectual Property; aggregate proceeds in excess of $3,000,000, as the case may be), over (y) the amount expended by Borrower to repair or replace such assets or properties prior to, or within 90 days after, the occurrence of such sale or transfer;
(ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the any sale or other disposition of Intellectual Property any asset of Borrower or its Subsidiaries with the prior written consent of Agent and the Required Lenders (which may be given or withheld in their sole discretion), it being agreed that Borrower determinesshall be required to prepay the Revolving Credit Loan and/or the Term Loans out of the proceeds of any such permitted sale or disposition, in its reasonable business judgment, is no longer desirable an amount and in the conduct manner specified by Agent and the Required Lenders in such consent and may retain such portion of the proceeds as it may be permitted to retain as provided in such consent;
(iii) any cable television "swap" expressly permitted pursuant to Section 7.1 above; and
(iv) such other sales or dispositions which do not, individually or in the aggregate, exceed $5,000,000, PROVIDED that the net sales proceeds thereof shall, promptly after receipt thereof be applied to prepay the Loans in accordance with the provisions of Section 2.4(b) hereof.
(b) Notwithstanding the provisions of Section 7.11(a) hereof, so long as no Default or Event of Default shall have occurred and be continuing, Borrower may in good faith sell, in a bona fide third party transaction, all or substantially all of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; assets at such time and on such terms as it shall deem appropriate, but only so long as (x) the net after tax cash proceeds realized by Borrower on such sale (the "Disposition Proceeds") shall be sufficient to prepay and discharge in full all Obligations and all Obligations (as defined in the V Cable Loan Agreement) then outstanding, and (y) provision reasonably satisfactory to Agent is made for the application of property the Disposition Proceeds immediately after such sale to discharge in full all such obligations. In the event of any prepayment of the Obligations pursuant to the extent that (A) such property is exchanged for credit against the purchase price immediately preceding sentence, Borrower's right to receive Revolving Credit Advances hereunder, and GE Capital's obligation to incur Letter of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required byCredit Obligations hereunder, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi) does not exceed $1,000,000 in any fiscal yearshall simultaneously terminate.
Appears in 1 contract
Sales of Assets. Sell, transfer, lease, license or otherwise dispose of, in one or any series of transactions, assets, whether now owned or hereafter acquired or enter into any agreement to do so; provided, however, the foregoing restriction shall not apply to (a “Transfer”a) any the sale of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases hydrocarbons or subleases of Intellectual Property inventory in the ordinary course of business other than the sale of a production payment and which do not materially interfere with provided that no contract for the business sale of hydrocarbons shall obligate the Borrower or its Subsidiary, as the case may be, to deliver hydrocarbons produced from any of the Borrower and its SubsidiariesMortgaged Property at some future date without receiving full payment therefor within 90 days of delivery, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title of the licensed Intellectual Property nor have the same effect as a sale of such Intellectual Property; (ii) Transfers of worn-out, obsolete or surplus property (each as determined by Borrower in its reasonable judgment); (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii) the sale or other disposition of Intellectual Property that Borrower determinesdestroyed, in its reasonable business judgmentlost, is worn out, damaged, or having only salvage value or no longer desirable used or useful in the conduct business of its business such Borrower, (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viiic) the sale of inventory Specified Assets on or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; before April 1, 2002, (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (xd) the sale of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price of such replacement property; (xi) Transfers of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding emission credits relating to any assetOil xxx Xxx Xxxxxxxx; provided such emission credits are not necessary for the efficient operation of such Oil and Gas Property and will not increase the cost of operating such Oil and Gas Property as contemplated by the most recent Reserve Report delivered pursuant hereto, will not change the value of such Oil and Gas Property and will not increase the Borrower's or the Borrower's Subsidiary's, as the case may be, operational risk, (xive) termination in addition to sales permitted by clauses (a), (b), (c) and (d) above arms- length sales of assets in any Sales Period having in the aggregate a value not in excess of $1,000,000, or unwinding of any Swap Agreement in accordance with its terms; (xvf) the liquidation, wind up or dissolution capital stock of any Subsidiary so long as all of the Borrower where the only assets of such liquidatingSubsidiary consist of assets the sale of which would be permitted under one or more of the preceding clauses (a) through (e) of this Section 6.5. For purposes of this Section 6.5, winding up or dissolving Subsidiary are transferred the value of any Property shall be the discounted present value of such Property as shown on the most recent Reserve Report delivered to the Agent pursuant to this Agreement. Cash proceeds received by the Borrower or another wholly owned Subsidiary any of Borrower that is not liquidatingits Subsidiaries from the sales of assets permitted hereby (other than the Specified Assets) shall either be (i) reinvested in substantially similar assets within 120 days after such sale or (ii) used for general corporate purposes, winding up or dissolving; subject to a concurrent adjustment of the Borrowing Base to eliminate the amount attributable by the Required Lenders to the sold assets in the most recent Borrowing Base determination under Section 2.12 and (xvi) other Transfers, provided that the aggregate fair market value repayment within thirty days of any amounts required pursuant to Section 2.13 as a result of such Transfers redetermination. Sale of any asset not expressly permitted in reliance on this clause (xvi) does Section 6.5 shall require prior approval by the consent of the Agent and the Required Lenders. Net proceeds received from the sales of Specified Assets not exceed $1,000,000 reinvested or used as provided in any fiscal yearthe second next preceding sentence shall be applied promptly to payment of outstanding Loans and to secure L/C Exposure of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (KCS Energy Inc)
Sales of Assets. SellEach Borrower shall, transferon each date on which such Borrower or any of its Subsidiaries receives any Net Cash Proceeds from the sale, lease, license transfer or otherwise dispose other disposition (each, a "Disposition") of any asset of such Borrower or any such Subsidiary (a “Transfer”) any other than sales of Borrower’s assets except (i) non-exclusive licenses, sublicenses, leases or subleases of Intellectual Property in the ordinary course of business and which do not materially interfere with the business any exchange of assets permitted by Section 5.02(e)(iv)), prepay an aggregate principal amount of the Borrower and its Subsidiaries, taken as a whole, provided that such licenses of Intellectual Property neither result in a legal transfer of title A Advances comprising part of the licensed Intellectual Property nor have same A Borrowings equal to such Net Cash Proceeds (or, if less, the same effect as a sale aggregate unpaid principal amount of all A Advances), together with accrued interest to the date of such Intellectual Property; prepayment on the principal amount prepaid and all amounts then owing under Section 9.04(b) in respect of such prepayment. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this paragraph (iib)(i) Transfers of worn-out, obsolete or surplus property with respect to the Net Cash Proceeds from any Disposition (each as determined by Borrower in its reasonable judgment); a "Relevant Disposition") if (iii) [reserved]; (iv) Transfers constituting Permitted Liens; (v) Transfers permitted in Section 6.6 hereunder; (vi) Transfers of Collateral (other than Intellectual Property) for fair consideration and in the ordinary course of its business; (vii1) the sale applicable Rate Ratio is less than or other disposition equal to 5.0:1 on the date of Intellectual Property that Borrower determinesreceipt of such Net Cash Proceeds, in its reasonable business judgment, is no longer desirable in the conduct of its business (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned); (viii) the sale of inventory or collateral in the ordinary course of business and goods held for sale in the ordinary course of business; (ix) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (x) the sale of property to the extent that (A2) such property is exchanged Borrower advises the Agent at the time the Net Cash Proceeds from such Relevant Disposition are received that it intends to reinvest such Net Cash Proceeds in replacement assets pursuant to a transaction permitted under Section 5.02(f) hereof, (3) such Net Cash Proceeds are in fact committed to be reinvested by such Borrower pursuant to a purchase contract providing for credit against the purchase price of similar replacement property or (B) the proceeds of such Transfer are promptly applied to the purchase price acquisition of such replacement property; assets that is executed by such Borrower (xior any of its Subsidiaries) Transfers and the related seller within 180 days from the date of Investments in joint ventures such Relevant Disposition and (4) the acquisition of such replacement assets occurs within 180 days from the date on which such purchase contract is so executed and delivered. If at any time after the occurrence of a Relevant Disposition and prior to the extent required by, or made pursuant to customary buy/sell arrangements between acquisition of the joint venture parties set forth related replacement assets the 180-day period provided in joint venture arrangements and similar binding arrangements; (xii) Transfers of Borrower’s cash or cash equivalents for purposes not prohibited hereunder; (xiii) Transfers resulting from any settlement of, or payment in respect of any property or casualty insurance claim, or any condemnation proceeding relating to any asset; (xiv) termination or unwinding of any Swap Agreement in accordance with its terms; (xv) the liquidation, wind up or dissolution of any Subsidiary so long as all the assets of such liquidating, winding up or dissolving Subsidiary are transferred to the Borrower or another wholly owned Subsidiary of Borrower that is not liquidating, winding up or dissolving; and (xvi) other Transfers, provided that the aggregate fair market value of such Transfers in reliance on this clause (xvi3) does not exceed $1,000,000 or (4) of the preceding sentence shall elapse without execution of the related purchase contract (in any fiscal yearthe case of said clause (3)) or the occurrence of the related acquisition (in the case of said clause (4)), then such Borrower shall immediately prepay the A Advances in the amount described in the first sentence of this Section 2.10(b)(i)."
Appears in 1 contract
