Purchases of Assets Fund will, on each business day on which a purchase of Assets shall be made by it, deliver to Custodian Instructions which shall specify with respect to each such purchase:
1. The name of the issuer and description of the Assets; 2. The number of shares or the principal amount purchased, and accrued interest, if any; 3. The trade date; 4. The settlement date; 5. The purchase price per unit and the brokerage commission, taxes and other expenses payable in connection with the purchase; 6. The total amount payable by the Portfolio upon such purchase; 7. The name of the person from whom or the broker or dealer through whom the purchase was made; and 8. The name of the Portfolio with respect to which such purchase was made. In accordance with such Instructions, Custodian will pay for out of monies held for the Account of the applicable Portfolio, but only insofar as monies are available therein for such purpose, and receive the Assets so purchased by or for the Account of the applicable Portfolio. Such payment will be made only upon receipt by Custodian of the Assets so purchased in form for transfer satisfactory to Custodian.
Sale of Assets, Etc (a) Subject to the penultimate paragraph of this clause (a), the Company will not and will not permit any of its Restricted Subsidiaries to make any Transfer, provided that the foregoing restriction does not apply to a Transfer if:
(i) the property that is the subject of such Transfer constitutes (A) inventory, (B) equipment, fixtures, supplies or materials no longer required in the operation of the business of the Company and the Restricted Subsidiaries or that is obsolete or (C) checks, drafts, money orders or other instruments with respect to accounts receivable that are to be collected in the ordinary course of business, and, in each case, such Transfer is in the ordinary course of business;
(ii) such Transfer is (A) from a Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary or (B) from the Company to a Wholly-Owned Restricted Subsidiary;
(iii) such Transfer is subject to Section 11.2 and satisfies the requirements thereof; or
(iv) such Transfer is not a Transfer described in clause (i) through clause (iii) above, and all of the following conditions shall have been satisfied with respect to such Transfer (each such Transfer is referred to as a "Basket Transfer"):
(A) in the good faith opinion of the Board of Directors of the Company, the Transfer is in exchange for consideration with a Fair Market Value at least equal to the greater of book value or the Fair Market Value of the property exchanged, is in the best interests of the Company and the Restricted Subsidiaries, and is not detrimental to the interests of the holders of Notes,
(B) immediately after giving effect to such transaction no Default or Event of Default would exist, and
(C) immediately after giving effect to such Transfer,
(I) the book value of all property that was the subject of any Basket Transfer occurring during the period beginning with the date that is 12 calendar months preceding the first day of the month in which such Basket Transfer occurred and ending on the date of such Basket Transfer does not exceed 10% of Consolidated Tangible Net Assets determined as of the end of the then most recently fiscal year of the Company ended prior to such period, and
(II) the Operating Income Contribution Percentage of all property that was the subject of any Basket Transfer occurring during the period beginning with the date that is 12 calendar months preceding the first day of the month in which such Basket Transfer occurred and ending on the date of such Basket Transfer does not exceed 10%. For purposes of determining the book value of any property that is the subject of a Transfer, such book value shall be the book value of such property, as determined in accordance with GAAP, at the time of the consummation of such Transfer, provided that, in the case of a Transfer of any capital stock or other equity interests of a Subsidiary, as provided in Section 11.9(b), the book value thereof shall be deemed to be an amount equal to
Disposition of Assets The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, at any time sell, lease, abandon, or otherwise dispose of any assets (other than assets disposed of in the ordinary course of business and other than the Philadelphia Disposition) without the prior written consent of the Banks; provided, however, that the prior written consent of the Banks shall not be required for (i) the transfer of assets (including cash or cash equivalents) among the Borrower and its Restricted Subsidiaries (excluding Subsidiaries described in clause (b) of the definition of "Subsidiary") or for the transfer of assets (including cash or cash equivalents) between or among Restricted Subsidiaries (excluding Subsidiaries described in clause (b) of the definition of "Subsidiary") of the Borrower, (ii) the disposition of communications tower facilities that contribute in the aggregate, less than (A) five percent (5%) of the Operating Cash Flow of Borrower for the twelve calendar month period immediately preceding such disposition, and (B) fifteen percent (15%) of the Operating Cash Flow of the Borrower for the period from the Agreement Date through the date of such disposition or (iii) subject to Section 2.5(c) hereof, any other property (real or personal) not used or useful in Borrower's or such Restricted Subsidiary's business. Upon any sale or disposition of a Restricted Subsidiary permitted hereunder, the Administrative Agent and the Banks shall, at Borrower's expense, take such actions as the Borrower reasonably requests to cause such Restricted Subsidiary to be released from its obligations under the Subsidiary Guaranty.
Puts of Assets to the Receiver (a) Puts Within 30 Days or 40 Days After the Bank Closing Date.
(i) During the thirty (30)-day period following the Bank Closing Date (which thirty (30)-day period may be extended in writing in the sole and absolute discretion of the Receiver for any Loan), in accordance with this Section 3.4, the Assuming Institution may require the Receiver to purchase (x) any Deposit Secured Loan transferred to the Assuming Institution pursuant to Section 3.1 which is not fully secured by Assumed Deposits or deposits at other insured depository institutions due to either insufficient Assumed Deposit or deposit collateral or deficient documentation regarding such collateral or (y) any New Loan; provided that, the Assuming Institution may not require the purchase of a Deposit Secured Loan that is secured by an Assumed Deposit until any Deposit setoff determination, whether voluntary or involuntary, has been made.
(ii) During the forty (40)-day period following the Bank Closing Date, the Assuming Institution may require the Receiver to purchase, any Eligible Overdraft transferred to the Assuming Institution pursuant to Section 3.1 which existed on the thirtieth (30th) day following the Bank Closing Date.
(iii) Notwithstanding the foregoing, the Assuming Institution may not require the Receiver to purchase any Loan pursuant to Section 3.4(a) if (x) the Obligor with respect to such Loan is an Acquired Subsidiary or (y) the Assuming Institution has:
(A) made any advance in accordance with the terms of a Commitment or otherwise with respect to such Loan;
(B) taken any action that caused an increase in the amount of a Related Liability with respect to such Loan;
(C) created or permitted to be created any Lien on such Loan which secures indebtedness for money borrowed or which constitutes a conditional sales agreement, capital lease or other title retention agreement;
(D) entered into, agreed to make, grant or permit, or made, granted or permitted any modification or amendment to, any waiver or extension with respect to, or any renewal, refinancing or refunding of, such Loan or related Credit Documents or collateral, including, without limitation, any act or omission which diminished such collateral; or
(E) sold, assigned or transferred all or a portion of such Loan to a third party (whether with or without recourse).
Merger, Sale of Assets, etc Subject to Section 4.2, if at any time while this Note remains outstanding and unexpired there shall be (a) a reorganization (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), (b) a merger or consolidation of the Company with or into another corporation in which the Company is not the surviving entity, or a merger in which the Company is the surviving entity but the shares of the Company's capital stock outstanding immediately prior to the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise or (c) a sale or transfer of the Company's stock, properties or assets as, or substantially as, an entirety to any other Person, then, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that Holder shall thereafter be entitled to receive by converting this Note the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon conversion of this Note would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Note had been converted immediately before such reorganization, merger, consolidation, sale or transfer (notwithstanding that the Stockholder Approval may not yet have been obtained), all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4.1 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation. If the per share consideration payable to Holder hereof for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company's Board of Directors based on the amount the Holder would have otherwise been entitled to receive had the transaction or transactions not occurred. In all events, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Note with respect to the rights and interests of Holder after the transaction, to the end that the provisions of this Note shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon conversion of this Note. The Company shall be obligated to retain and set aside, or otherwise make fair provision for exercise of the right of the Holder to receive, the shares of stock and/or other securities, cash or other property provided for in this Section 4.1.
Sale and Transfer of Assets In reliance on the representations, warranties, covenants and agreements contained herein and subject to the terms and conditions hereof, on the Closing Date (as hereinafter defined), Seller shall sell, convey, transfer and deliver to Buyer, and Buyer shall purchase from Seller, the assets, tangible and intangible, used or to be used in the Aviation Business, but expressly excluding the Excluded Assets (as defined in Section 1(b)), and including without limitation, the following (collectively, the “Assets”), free and clear of all Encumbrances:
(i) all assets of the Aviation Business as reflected on Schedule B attached hereto including, but not limited to, inventory, tools, equipment, vehicles, furniture and fixtures;
(ii) the right, title and interest of Aviation under the Master Lease, including leasehold improvements located on the real property leased by Seller under the Master Lease (the “Real Property”);
(iii) the right, title and interest of Aviation under the customer contracts and contract rights of all kind (including, without limitation, rental contracts, hanger leases, customer service contracts, tie down agreements, capital leases for equipment, furniture, trucks and other property used in or necessary for the operation of the Aviation Business as currently conducted) listed on Schedule B attached hereto, to the extent assumable and/or assignable, which Buyer has elected to assume by written notice to Seller within five (5) business days of the date of this Agreement, which Buyer may extend for an additional five (5) day period, together with all deposits and prepaid amounts under such contracts, agreements and arrangements (collectively “Assumed Aviation Contracts”);
(iv) the name “Ronson Aviation” and all other intellectual property rights and other intangible personal property owned or leased by Aviation that is used in or necessary for the conduct of the Aviation Business as currently conducted;
Xxxxxx, Sale of Assets, etc If the Borrower at any time shall consolidate with or merge into or sell or convey all or substantially all its assets to any other corporation, this Note, as to the unpaid principal portion thereof and accrued interest thereon, shall thereafter be deemed to evidence the right to purchase such number and kind of shares or other securities and property as would have been issuable or distributable on account of such consolidation, merger, sale or conveyance, upon or with respect to the securities subject to the conversion or purchase right immediately prior to such consolidation, merger, sale or conveyance. The foregoing provision shall similarly apply to successive transactions of a similar nature by any such successor or purchaser. Without limiting the generality of the foregoing, the anti-dilution provisions of this Section shall apply to such securities of such successor or purchaser after any such consolidation, merger, sale or conveyance.
Sales, Etc. of Assets Sell, lease, transfer or otherwise dispose of, or cause or permit any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except (i) sales in the ordinary course of its business, (ii) dispositions of assets required to be sold to comply with Applicable Laws, (iii) dispositions of short-term, readily marketable investments purchased for cash management purposes with funds not representing the proceeds of other asset sales, (iv) sales, leases, transfers or dispositions of assets to any Person that is not a wholly-owned Subsidiary of the Borrower that in the aggregate during any 12-month period do not exceed 10% of the Consolidated Assets of the Borrower and its Subsidiaries, whether in one transaction or a series of transactions, provided that any such sales, leases, transfers or dispositions will be disregarded for purposes of such 10% limitation (and, for the avoidance of doubt, be deemed to be permitted hereunder) if the net proceeds thereof, within 18 months of such sale, lease, transfer or disposition, as applicable, are (A) used to retire Debt of the Borrower and its Subsidiaries (other than Debt that is subordinated to the Debt hereunder) or (B) invested in assets in similar or related lines of business (including geographic extensions thereof) of the Borrower and its Subsidiaries as of the Closing Date, (v) sales, leases, transfers and dispositions made to the Borrower or a wholly-owned Subsidiary of the Borrower and (vi) a disposition by the Borrower of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entity.
Transfer of Assets On the Closing Date, as defined in Section 2.1, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase from Seller, all of the assets now owned by the Companies of every kind and character, real, personal, tangible, intangible or mixed, used by, or useful to, the Companies in connection with, or associated with the operation of, the Business (the "Acquired Assets"), all of which shall be distributed to Seller in connection ------------------ with the Dissolution and owned by Seller on and as of the Closing Date, free and clear of all Liens other than Permitted Liens, and shall include, but not be limited to the following:
(a) All trade accounts receivable and other rights to receive payments from customers of the Business as of the Closing Date, including all trade accounts receivable representing amounts receivable in respect to rentals, products sold and/or services rendered to customers of the Business on or prior to the Closing Date, and the full benefit of all security for such accounts or debts (collectively the "Customer Receivables"), and those other accounts -------------------- receivable outstanding as of the Closing Date (the "Other Receivables" and ----------------- collectively with the Customer Receivables, the "Receivables"). True and ----------- correct lists of the Customer Receivables and the Other Receivables, including the amount owed to each of the Companies with respect to each such Receivable, as of February 28, 1999, are set forth on Schedule 1.1(a) attached hereto, with --------------- such Schedule to be updated through the last day of the month prior to the Closing Date and delivered at the Closing.
(c) All owned real estate of the Companies, including land, buildings, improvements and fixtures, located in or near (i) Freeport, Texas, (ii) XxXxxxx Texas, (iii) Texas City, Texas, (iv) Port Lavaca, Texas, (v) Houston, Texas and (vi) Lake Xxxxxxxxxx, Texas (the "Owned Real Property"), the legal description ------------------- of each of which is set forth on Schedule 1.1(c). ----------------
(d) All leased real estate of the Companies, including land, buildings and improvements, all of the foregoing of which are listed on Schedule 1.1(d) --------------- (collectively the "Real Property Leases"). --------------------
(e) All of the Companies' furniture, fixtures, computer hardware and software, office equipment and supplies, phone lines and systems, and signs (interior and exterior), including all such properties and assets of the Business that have been fully depreciated or expensed, whether or not any of the foregoing are or were recorded as assets of the Companies on the books of the Companies, all as more particularly described on Schedule 1.1(e) attached hereto -------------- (collectively, the "Furniture and Fixtures"); ----------------------
(f) All of the replacement parts, inventory and operating supplies used in the operation of the Business, including all such properties and assets of the Business that have been fully depreciated or expensed, whether or not any of the foregoing are or were recorded as assets of the Companies on the books of the Companies (collectively, the "Spare Parts, Inventory and Supplies"); -----------------------------------
(g) All of the machinery and tools used in the operation of the Business, including all such properties and assets of the Business that have been fully depreciated or expensed, whether or not any of the foregoing are or were recorded as assets of the Companies on the books of the Companies, including without limitation those described on Schedule 1.1(g) attached hereto --------------- (the "Machinery and Tools"); -------------------
(h) All inspection records on the Rental Equipment, all repair and service history files with respect to the Rental Equipment, customer account histories and choices in action of the Companies or any of them, all rights of the Companies under all insurance policies and bonds covering the Rental Equipment, the Premises, the Furniture and Fixtures, the Spare Parts, Inventory and Supplies, the Machinery and Tools and the Shop Equipment and Rigging for all periods through the Effective Time; and all of the right, title and interest of the Companies in the telephone and telecopy numbers and telephone directory listings of the Companies; internet domain names, if any; and, (iii) all other intangible assets of the Companies not described above and not otherwise described on Schedule 1.1
(j) hereto (the "Intangible Assets"); --------------- -----------------
(i) All of the shop equipment and rigging of the Companies (collectively, the "Shop Equipment and Rigging"); ------------------------------
(j) All worldwide trademarks, service marks and trade names and registrations and pending applications therefore, relating to the Business, including all right, title and interest of the Companies in and to (i) the names Xxxx Equipment and Texas Matt & Rigging (all of which the Companies will cease to use from and after the Closing Date)
(ii) worldwide common law and registered copyrights, patents, and patent applications (if any) (iii) common law inventions, whether patentable or not, discoveries, and improvements, and (iv) all other licenses, franchises, processes, formulae, new products and product development, trade secrets, customer lists, mailing lists, brochures, blueprints, specifications, equipment plans, manuals, engineering records and drawings, know how, sales records, marketing and promotion information, computer programs and software and computer systems, in each case owned or held by the Companies, as well as all books, documents and records relating to the foregoing and the Business (collectively the "Intellectual Property"). ---------------------
(k) All leases of personal property, including without limitation those which are listed on Schedule 1.1
Contribution of Assets Subject to and upon the terms and conditions contained herein, on the Closing Date, Dentist shall convey, transfer, deliver and assign to Pentegra or any affiliate of Pentegra designated by Pentegra all of Dentist's right, title and interest in and to those certain assets described on EXHIBIT 1.1 attached hereto (individually, "Asset", and collectively "Assets"), free and clear of all obligations, security interests, claims, liens and encumbrances, except as specifically assumed, or taken subject to, by Pentegra pursuant to SECTION 1.3(b) hereof.
