Common use of Sale of Assets Clause in Contracts

Sale of Assets. It is the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Union Planters Home Equity Corp), Pooling and Servicing Agreement (Union Planters Mortgage Finance Corp), Pooling and Servicing Agreement (Union Planters Mortgage Finance Corp)

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Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a “Disposition”), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary or (c) Dispositions not otherwise permitted by clauses (a) or (b) of this Section 10.3, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does not exceed 15% 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 (including the sale of receivables in an Asset Securitization Transaction) and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in clause (c) of the preceding sentence to the extent that (i) such assets were acquired or constructed not more than 180 days prior to the date of Closing and are leased back by the Company or any Restricted Subsidiary, as lessee, within 180 days of the acquisition or construction thereof, or (ii) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Restricted Subsidiary or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including 8.3 without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 3 contracts

Samples: Note Purchase Agreement (Energizer Holdings Inc), Note Purchase Agreement (Energizer Holdings Inc), Note Purchase Agreement (Energizer Holdings Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the DepositorBorrower to obtain the consent of the Majority Lenders pursuant to Section 6.5 hereof to any Asset Disposition not otherwise permitted hereunder, no later than five Business Days prior to the occurrence of any such Asset Disposition, the Borrower will deliver to the Lenders a statement, certified by a senior financial officer of the Borrower in form and detail satisfactory to the Agent, of the estimated amount of the Net Proceeds of such Asset Disposition and, to the extent such Net Proceeds (when taken together with the Net Proceeds of all prior Asset Dispositions as to which a prepayment has not yet been made under this paragraph (b)) shall exceed $2,000,000, the Borrower shall prepay the Loans (and such prepayment shall be applied as set forth in Section 2.5(f)) in an aggregate amount equal to 100% of the Net Proceeds of such Asset Disposition (together with 100% of the Net Proceeds of all prior Asset Dispositions as to which a prepayment has not yet been made under this paragraph (b)). HoweverNotwithstanding the foregoing, the Borrower shall not be required to make a prepayment pursuant to this paragraph (b) with respect to the Net Proceeds from any Asset Disposition in the event thatthat the Borrower advises the Agent at the time the Net Proceeds from such Asset Disposition are received that it or its Subsidiary that consummated such Asset Disposition, notwithstanding as the intent of the partiescase may be, intends to reinvest such Assets are held Net Proceeds into replacement assets pursuant to continue to be property of the Depositor, then a Permitted Acquisition (a) the Pooling and Servicing Agreement also for these purposes Reserved Amounts arising in connection with any Asset Disposition shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for reinvestment in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's rightreplacement assets), title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.so long as

Appears in 2 contracts

Samples: Credit Agreement (Classic Communications Inc), Credit Agreement (Black Creek Management LLC)

Sale of Assets. It Except as permitted by Section 10.5, the Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of merger (collectively a "DISPOSITION"), any assets, including capital stock of Subsidiaries, in one or a series of transactions, to any Person, other than Dispositions in the ordinary course of business and Dispositions by the Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary, unless such Disposition is for fair market value and the express intent aggregate net book value of all assets so disposed of in any period of four fiscal quarters of the Depositor Company then next ending pursuant to this Section 10.4 does not exceed 10% of the book value of total assets of the Company and its Restricted Subsidiaries determined as of the end of the immediately preceding fiscal quarter. Notwithstanding the foregoing, the Company may, or may permit any Restricted Subsidiary to, make a Disposition and the Trustee assets subject to such Disposition shall not be subject to or included in the foregoing limitation and computation contained in the preceding sentence to the extent that (x) such assets are leased back by the conveyance Company or any Restricted Subsidiary, as lessee, within 180 days of the Assets underlying a Series Disposition thereof, or (y) the net proceeds from such Disposition are, within 180 days of such Disposition, (A) reinvested in productive fixed assets by the Depositor Company or a Restricted Subsidiary or (B) applied to the Trustee pro rata payment or prepayment of the Notes and other outstanding Consolidated Indebtedness that is not subordinated to the Notes. Any prepayment of Notes pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also this Section 10.4 shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with Sections 8.2 and 8.3, without regard to the terms thereof and all proceeds minimum prepayment requirements of Section 8.2. Furthermore, this Section 10.3 shall not apply to the disposition of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested Company's plant located in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, Kentucky if the Pooling and Servicing Agreement were deemed to create a security interest outstanding industrial revenue bond secured by such plant is paid in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementfull in connection with said Disposition.

Appears in 2 contracts

Samples: Conformed Copy (Northwest Pipe Co), Entire Agreement (Northwest Pipe Co)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower to obtain the consent of the Majority Lenders pursuant to Section 9.05 to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions as to which a prepayment has not yet been made under this paragraph, shall exceed $2,500,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Borrower will deliver to the Lenders a statement, certified by a Financial Officer of the Borrower, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and upon the date 90 days following the receipt by the Borrower or any of its Subsidiaries of the proceeds of the Current Disposition (or upon such earlier date as the Borrower or such Subsidiary, as the case may be, shall have determined not to reinvest the proceeds of the Current Disposition in Capital Expenditures or the acquisition of any business not prohibited hereby), the Borrower shall prepay the Loans, and/or the Commitments shall be subject to automatic reduction, in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions not theretofore so reinvested, such Assets are held to continue prepayment and/or reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable to the holders of the Assets extent specified in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; paragraph (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicablee) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementthis Section 2.09.

Appears in 2 contracts

Samples: Credit Agreement (International Telecommunication Data Systems Inc), Credit Agreement (International Telecommunication Data Systems Inc)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a “Disposition”), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverSubsidiaries, in the event thatone or more transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Subsidiary or by a Subsidiary to the Company or another Subsidiary or (c) Dispositions not otherwise permitted by this Section 10.3, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does 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 Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in clause (c) of the preceding sentence to the extent that (x) such assets are leased back by the Company or any Subsidiary, as lessee, within 180 days of the original acquisition or construction thereof by the Company or such Subsidiary, or (y) the net proceeds from such Disposition are within 180 days of such Disposition (A) reinvested in productive assets by the Company or a Subsidiary consistent with Section 10.6 or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement8.3.

Appears in 2 contracts

Samples: Agreement (Aptargroup Inc), Agreement (Aptargroup Inc)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "Disposition"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.3, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does 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 and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in clause (c) of the preceding sentence to the extent that (x) such assets are leased back by the Company or any Restricted Subsidiary, as lessee, within 180 days of the Disposition thereof, or (y) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Restricted Subsidiary or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 2 contracts

Samples: Note Purchase Agreement (Belden Inc), Note Purchase Agreement (Belden Inc)

Sale of Assets. It is The Borrower shall not, and shall not permit any of its Subsidiaries to, without the express intent prior consent of the Depositor and the Trustee that the conveyance Agent, directly or indirectly, sell, lease, assign, transfer or otherwise dispose of the Assets underlying a Series any assets other than (i) Accounts sold by the Depositor Borrower pursuant to that certain Wickes Lumber Charge Plan Retail Accounts Merchant Agreement, dated April 15, 1988, as amended through the date hereof, between the Borrower and WCI Financial Corp. or any replacement agreement in form and substance reasonably satisfactory to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It isAgent, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, (ii) Inventory in the event thatordinary course of business, notwithstanding (iii) individual items of property with a fair market value of less than $500,000 in the intent aggregate during any fiscal year and (iv) obsolete or worn out property disposed of in the partiesordinary course of business, such Assets are held so long as, with respect to continue to be property of the Depositorsubsections (i) through (iv) above, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; all such dispositions are for fair value, (b) all cash received for all such dispositions is used to repay the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other propertyRevolving Loans, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by aggregate consideration for such dispositions is paid in full in cash at the Trustee or its agent time of items disposition, provided that, with respect to any such disposition of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest assets otherwise permitted hereunder (other than dispositions pursuant to Section 9-305 of subsections (i) or (ii) above), the applicable UCC; and Borrower may receive a promissory note from the purchaser thereof in an amount equal to no greater than twenty percent (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable20%) of the Trustee aggregate consideration for such disposition so long as (i) such promissory note has a final maturity date no greater than two years from the date of such disposition, (ii) each such promissory note is pledged to the Agent as additional security for the purpose repayment of perfecting the Obligations, and (iii) the outstanding aggregate principal amount of all such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed promissory notes received by the Depositor or Borrower pursuant to this Section 8.9 does not at any time exceed $1,000,000. Notwithstanding the Master Servicerforegoing, the Borrower may sell the Real Estate and other capital assets listed on Schedule 8.9 (subject to clauses (a) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure (c) above); provided that, if the Pooling and Servicing Agreement were deemed Net Cash Proceeds thereof are used by the Borrower to create a security interest either (i) make Permitted Acquisitions as provided in Section 8.20(c), (ii) acquire other capital assets to be used by the Borrower in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term conduct of the Pooling and Servicing AgreementBorrower's business as presently conducted or (iii) repay the Revolving Loans.

Appears in 2 contracts

Samples: Credit Agreement (Wickes Lumber Co /De/), Credit Agreement (Riverside Group Inc/Fl)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower to -------------- obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and ------------------- of all prior Dispositions after the date hereof as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $5,000,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Borrower will deliver to the Lenders a statement, certified by a Senior Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (g) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (f) of this Section 2.10. Notwithstanding the foregoing, the Borrower shall not be required to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest make a prepayment pursuant to Section 9-305 of the applicable UCC; and this paragraph (d) notifications with respect to persons holding such property, and acknowledgments, receipts or confirmations Net Available Proceeds from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest any Disposition in the related Assets, event that the Borrower advises the Administrative Agent at the time the Net Available Proceeds from such security interest would be deemed Disposition are received that it intends to be a perfected security interest of first priority reinvest such Net Available Proceeds in replacement assets pursuant to an acquisition permitted under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.Section 8.05(d)(v) hereof so long as

Appears in 2 contracts

Samples: Credit Agreement (Mediacom LLC), Credit Agreement (Mediacom LLC)

Sale of Assets. It is Promptly upon the express intent consummation of a Disposition (and in any event within four (4) Business Days thereof), GEO or the Borrowers, as applicable, will prepay the Loans in an aggregate amount equal to 100% of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale Net Available Proceeds of such Assets by the Depositor Disposition, such prepayment and/or reduction to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, effected in each case in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets extent specified in Section 2.10(b)(v)(A) if the Disposition provides for Net Available Proceeds in respect of any property that that is Common Collateral or that is not Collateral, and all amounts payable to Section 2.10(b)(v)(B) if the holders Disposition provides for Net Available Proceeds in respect of any property that that is Exclusive Collateral; provided, however, that no proceeds of any Disposition shall constitute Net Available Proceeds under this clause (ii) unless the aggregate amount of the Assets Net Available Proceeds of such Disposition exceed $5,000,000 (and thereafter only Net Available Proceeds in accordance with the terms thereof and all excess of such amount shall constitute Net Available Proceeds under this clause (ii)); provided, however, that proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; Disposition shall constitute Net Available Proceeds under this clause (cii) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by aggregate amount of all such proceeds exceeds (x) in any fiscal year, $15,000,000 or (y) during the Depositor or the Master Servicerterm of this Agreement, $50,000,000 (and thereafter only Net Available Proceeds in excess of such amount(s) shall takeconstitute Net Available Proceeds under this clause (ii)). Prior to or substantially concurrently with the consummation of any Disposition, GEO shall deliver to the Administrative Agent (for further distribution to the Lenders) a statement, certified by a Financial Officer of GEO, in form and detail reasonably satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of such Disposition (except that such statement shall not be required for any Disposition the Net Available Proceeds of which are less than or equal to $5,000,000); provided that, for the avoidance of doubt, such certified statement may be supplemented or modified in writing by such Financial Officer solely as to such amount of Net Available Proceeds if and to the extent consistent with the Pooling (and Servicing Agreement, during such actions as may time as) a corresponding supplement or modification shall be necessary delivered by such Financial Officer pursuant to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term clause (II) of the Pooling and Servicing Agreementfinal proviso to the definition of “Net Available Proceeds” set forth in Section 1.01.

Appears in 1 contract

Samples: Credit Agreement (Geo Group Inc)

Sale of Assets. It is The Company will not, nor will it permit any Subsidiary to, lease, sell or otherwise dispose of its Property, to any other Person (other than the express intent Company or any Guarantor), except: (i) Sales of inventory in the ordinary course of business. (ii) Sales or other dispositions in the ordinary course of business of fixed assets for the purpose of replacing such fixed assets, provided that such fixed assets are replaced within 180 days of such sale or other disposition with other fixed assets which have a fair market value not materially less than the fixed assets sold or otherwise disposed of. (iii) Any sale or other transfer of an interest in accounts or notes receivable to a Securitization Entity pursuant to a Permitted Securitization Transaction allowed by the terms of this Agreement. (iv) The European Operations Sale. (v) The Permitted Disposition. (vi) Other leases, sales (including sale leasebacks) or other dispositions of its Property that, together with all other Property of the Depositor Company and its Subsidiaries previously leased, sold or disposed of (other than as provided in clauses (i) through (v) above) as permitted by this Section during the Trustee that twelve-month period ending with the conveyance month prior to the month in which any such lease, sale or other disposition occurs, do not constitute a Substantial Portion of the Assets underlying a Series by Property of the Depositor Company and its Subsidiaries. Notwithstanding anything in this Section 6.12 to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It iscontrary, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling no such leases, sales or other dispositions of property may be made (other than pursuant to clause (i) above) if any Default or Unmatured Default has occurred and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; is continuing, and (b) all leases, sales and other dispositions of Property at any time shall be for not less than the conveyance fair market value of such Property as determined in good faith by the Depositor provided for in Company and at least 75% of the Pooling and Servicing Agreement consideration therefor received by the Company or such Subsidiary shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash. Additionally, instrumentsnotwithstanding anything in this Section 6.12 to the contrary, securities (x) any Foreign Subsidiary may transfer any or other propertyall of its assets to the Company, a Guarantor or a Foreign Subsidiary Borrower, provided that a Foreign Subsidiary Borrower that has any Obligations outstanding may not so transfer its assets to a Foreign Subsidiary Borrower unless the transferee of such assets assumes all such Obligations in a manner acceptable to the Agent, and including without limitation (y) any Subsidiary may transfer any or all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or of its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (assets to the extent the Trustee has been instructed by the Depositor Company or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.Guarantor. 6.13

Appears in 1 contract

Samples: Execution Copy (Myers Industries Inc)

Sale of Assets. It is Except as permitted by Section 10.5, the express intent Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "Disposition"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverSubsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than: (a) Dispositions in the Pooling ordinary course of business (including inventory and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCCused, worn-out or surplus equipment); (b) the conveyance Dispositions by the Depositor Company to a Subsidiary or by a Subsidiary to the Company or another Subsidiary: (c) Dispositions consisting of the sale of accounts and notes receivable, on a non-recourse or limited recourse basis, provided for that such Disposition constitutes a sale under GAAP and that the principal amount of all financings in connection with which such Dispositions are made does not exceed $200,000,000 at any time; or (d) Dispositions not otherwise permitted by Section 10.4(a), (b) or (c), provided that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.4(d) does 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 Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in this Section 10.4(d) to the extent that (i) such assets were acquired or constructed not more than 365 days prior to the date of Closing and are leased back by the Company or any Subsidiary, as lessee, within 365 days of the acquisition or construction thereof, or (ii) the net proceeds from such Disposition are within 180 days of such Disposition (A) reinvested in productive assets by the Company or a Subsidiary or (B) applied to the payment or prepayment of any outstanding Debt of the Company or any Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.4(d) shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2. 10.5.

Appears in 1 contract

Samples: Subsidiaries and Ownership of Subsidiary (Ace Hardware Corp)

Sale of Assets. It is The Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of (collectively, a "Disposition") any assets, in one or a series of transactions, other than in the express intent ordinary course of business, to any Person, other than the Company or any Subsidiary, if (1) in any fiscal year of the Depositor and Company, after giving effect to such Disposition, the Trustee that the conveyance aggregate book value of all such assets sold, leased, transferred or otherwise disposed of in such fiscal year would exceed 10% of Consolidated Total Assets as of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention end of the Depositor immediately preceding fiscal year or (2) if the Trustee that such conveyance be deemed a pledge assets constituting the Disposition contributed in excess of such Assets by the Depositor 15% to the Trustee to secure a debt or other obligation income of the Depositor. HoweverCompany and its Subsidiaries before income taxes and interest, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets as determined in accordance with generally accepted accounting principles, for the terms thereof and prior fiscal year; provided, that the aggregate book value of all proceeds assets sold, leased, transferred or otherwise disposed of pursuant to this paragraph 5.1(d) shall not exceed (i) 25% of Consolidated Total Assets as of December 31, 1997, plus (ii) the cumulative sum of the conversion, voluntary increase (or involuntary, decrease) in Consolidated Total Assets as of the foregoing into cashend of each subsequent fiscal year; provided, instrumentsthat, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 this paragraph 5.1(d), in no year shall such increase exceed 10% of the applicable UCC; prior year's Consolidated Total Assets. Notwithstanding the foregoing, the Company may make a Disposition and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) the book value of the Trustee for assets shall not be required to be included in the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, foregoing computation if the Pooling Company shall, within one year after such Disposition, invest the net proceeds thereof in other tangible property of a similar nature and Servicing Agreement were deemed to create a security interest at least equivalent value (whether new, additional or replacement property but excluding property purchased as part of regular upkeep and maintenance) for use in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term business of the Pooling Company and Servicing Agreementits Subsidiaries.

Appears in 1 contract

Samples: Credit Agreement (May & Speh Inc)

Sale of Assets. It is The Company will not, and will not permit the express intent Parent or any Significant Subsidiary to, make an Asset Disposition (other than an Asset Disposition subject to Section 10.2 and satisfying the requirements thereof) if immediately after giving effect to such Asset Disposition, (i) any Event of Default shall have occurred and be continuing, or (ii) the Depositor and amount equal to (A) the Trustee that the conveyance aggregate Disposition Value of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be all property of the DepositorParent, then (a) the Pooling Company and Servicing Agreement also shall be deemed any Significant Subsidiary disposed of pursuant to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets Asset Dispositions in accordance with this Section 10.10 during the terms thereof and all proceeds then current fiscal year of the conversionParent minus (B) the aggregate amount in respect of Asset Dispositions consummated during such fiscal year that has been applied to either or both of a Debt Prepayment Application or a Property Reinvestment Application, voluntary or involuntarywould exceed 10% of Consolidated Total Assets, determined as at the end of the foregoing into cashthen most recently ended fiscal quarter of the Parent (any such excess being referred to as the “Excess Asset Sale Amount” of such Asset Disposition), instrumentsunless, securities solely with respect to the circumstances described in clause (ii) of this Section 10.10, an amount equal to the lesser of the Excess Asset Sale Amount and the Net Proceeds arising from such Asset Disposition is applied to either or other property, including without limitation all amounts, other than investment earnings, from time to time held both of a Debt Prepayment Application or invested in a Property Reinvestment Application within 365 days of the related Certificate Account or Distribution Account, whether in the form date of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest such disposition pursuant to this Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for 10.10. For the purpose of perfecting such security interest under applicable law. The Depositor and determining compliance with this Section 10.10, the Trustee (Company shall have the right to designate the extent the Trustee has been instructed by the Depositor Asset Dispositions to which any Debt Prepayment Application or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementProperty Reinvestment Application relates.

Appears in 1 contract

Samples: Note Purchase Agreement (American Water Works Company, Inc.)

Sale of Assets. It is Except as permitted by Section 10.9, the express intent of the Depositor Company and the Trustee that the conveyance Co-Obligors will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Assets underlying merger (collectively a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale "Disposition"), any assets, including capital stock of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverSubsidiaries, in the event thatone or more transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 business, including Dispositions of the applicable UCC; obsolete equipment, (b) Dispositions in connection with Permitted Sale and Leaseback Transactions and (c) Dispositions not otherwise permitted by this Section 10.8, provided that the conveyance by aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.8(c) does not exceed 15% of Consolidated Total Assets as of the Depositor provided for end of the immediately preceding fiscal year. Notwithstanding the foregoing, the Company and the Co-Obligors may make, or may permit any Subsidiary to make, a Disposition and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement shall be deemed to be a grant by computation contained in clause (c) of the Depositor preceding sentence to the Trustee extent that the net proceeds from such Disposition are within 365 days of a security interest such Disposition (x) reinvested in all of the Depositor's right, title and interest in and productive assets consistent with Section 10.10 or (y) applied to the Assets and all amounts payable payment or prepayment of any outstanding Indebtedness ranking pari passu with the Notes (other than Indebtedness owing to the holders Company, any of its Subsidiaries or any Affiliate or in respect of any revolving credit or similar credit facility providing the Assets in accordance Company or any of its Subsidiaries with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities right to obtain loans or other property, including without limitation all amounts, other than investment earnings, extensions of credit from time to time held or invested in the related Certificate Account or Distribution Accounttime, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (except to the extent that in connection with such payment of Indebtedness the Trustee has been instructed availability of credit under such credit facility is permanently reduced by an amount not less than the Depositor or the Master Servicer) shall take, amount of such proceeds applied to the extent consistent with the Pooling and Servicing Agreement, payment of such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementIndebtedness).

Appears in 1 contract

Samples: Note Purchase Agreement (Chicago Bridge & Iron Co N V)

Sale of Assets. It is the express intent The Borrower will not, nor will it permit any Subsidiary to, lease, sell, transfer or otherwise dispose of the Depositor and the Trustee that the conveyance of the Assets underlying a Series its Property (by the Depositor merger or otherwise), to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or any other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then Person except for (a) sales of inventory in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) any other sale, transfer or disposition excluded from the conveyance definition of Asset Disposition or permitted by the Depositor provided for in the Pooling Section 6.14 and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee leases, sales, transfers or other dispositions of its agent of items of property Property that constitute instrumentsin any calendar year, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 together with all other Property of the applicable UCCBorrower and its Subsidiaries previously leased, sold or disposed of (other than in transactions permitted by subsection (a) or (b) of this Section 6.13) in such calendar year, do not exceed 15% of the book value of the Borrower's consolidated assets as of the beginning of such calendar year; provided that neither the Borrower nor any Subsidiary shall consummate a lease, sale, transfer or other disposition of its Property which, together with all other Property of the Borrower and its Subsidiaries leased, sold or disposed of after the date of this Agreement (dother than in transactions permitted by subsection (a) notifications to persons holding or (b) of this Section 6.13), exceeds 25% of the book value of the Borrower's consolidated assets as of the beginning of the year in which such propertytransaction occurs. Within twelve months of the receipt thereof, and acknowledgmentsthe Borrower shall reinvest, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents as contemplated by clause (as applicablei) of the Trustee for first parenthetical of Section 2.7 (a), any Net Available Proceeds from Asset Dispositions (excluding the purpose first $10,000,000 of perfecting such security interest under applicable law. The Depositor and the Trustee (proceeds in any calendar year) which, pursuant to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takesuch Section, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create did not result in a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementmandatory commitment reduction.

Appears in 1 contract

Samples: Credit Agreement (SPX Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in Obligors to obtain the event that, notwithstanding the intent consent of the partiesMajority Banks pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, such Assets are held no later than five Business Days prior to continue to be property the occurrence of any Disposition, the DepositorCompany, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 on behalf of the applicable UCC; (b) Obligor will deliver to the conveyance Banks a statement, certified by the Depositor provided for chief financial officer or treasurer of the Company, in the Pooling form and Servicing Agreement shall be deemed to be a grant by the Depositor detail satisfactory to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntaryAgent, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 amount of the applicable UCC; and (d) notifications to persons holding Net Available Proceeds of such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takeDisposition and, to the extent consistent such Net Available Proceeds (when taken together with the Pooling Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(c)) shall exceed $2,000,000, the Company shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in clause (e) below), and Servicing Agreementthe Borrowing Base shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of such Disposition, or such lesser amount as is specified in a written notice from the Majority Banks (together with 100%, or such lesser amount as is specified in a written notice from the Majority Banks, of the Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(c)), such actions as may prepayment and reduction to be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest effected in each case in the related Assetsmanner and to the extent specified in clause (d) of this Section 2.10. Notwithstanding the forgoing, such security interest would the Company shall not be deemed required to prepay the Loans (and/or provide cover for the Letter of Credit Liabilities pursuant to Section 2.10(e) hereof), and the Borrowing Base shall not be a perfected security interest subject to automatic reduction upon any sale of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementProperty, other than any Hydrocarbon Property, pursuant to Section 9.05 hereof.

Appears in 1 contract

Samples: Credit Agreement (Forest Oil Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower to obtain the consent of the Required Lenders pursuant to Section 7.05 to any Disposition not otherwise permitted hereunder, in the event that the Net Available Proceeds of any Disposition (the "Current Disposition"), and of all prior Dispositions (other than sales of assets in the ordinary course of business or in connection with any Receivables Financing) as to which a prepayment has not yet been made under this paragraph, shall exceed $100,000,000 in the aggregate for any fiscal year (such excess amount for any fiscal year, the "Excess Disposition Proceeds"), then, no later than five Business Days prior to the consummation of the Current Disposition, the Borrower will deliver to the Lenders a statement, certified by a Financial Officer of the Borrower, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will, on or prior to the date which is 270 days after the consummation of the Current Disposition, prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.04(k)), and/or the Commitments shall be subject to automatic reduction, in an aggregate amount equal to the Excess Disposition Proceeds, such prepayment and/or reduction to be effected in each case in the manner and to the extent specified in clause (iv) of this paragraph, provided that, notwithstanding the intent of foregoing, the parties, such Assets are held Borrower shall not be required to continue make a prepayment under this clause (ii) (A) with respect to be property of the Depositor, then any Disposition permitted under Section 7.05 or (aB) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor that on or the Master Servicer) shall take, prior to the extent consistent with date within 180 days following receipt of the Pooling Net Available Proceeds of the Current Disposition the Borrower shall have advised the Administrative Agent that it has entered into a legally binding commitment to make any Acquisition permitted under Section 7.04(f) and Servicing Agreementthat it intends to use all or portion of the Net Available Proceeds of the Current Disposition to finance such Acquisitions and that, on or prior to the date which is 360 days after the Current Disposition, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementproceeds are actually so invested.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Sale of Assets. It is Except as permitted by Section 10.5 hereof, the express intent Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "Disposition"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverSubsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) Dispositions by a Subsidiary to the conveyance Company or another Wholly Owned Subsidiary or (c) Dispositions not otherwise permitted by Section 10.6(a) or (b), provided that (i) each such Disposition is for a consideration at least equal to the fair market value of the property subject thereto, (ii) the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.6(c) does not exceed 25% of Consolidated Total Assets as of the end of the immediately preceding fiscal year, and (iii) after giving effect to such Disposition no Default or Event of Default would exist. Notwithstanding the foregoing, the Company may, and may permit any Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in the foregoing limitation and computation contained in clause (c) of the preceding sentence to the extent that (A) the net proceeds from such Disposition are within 365 days of such Disposition (y) reinvested or committed to be reinvested in productive assets of a similar nature of at least equivalent value by the Depositor Company or a Subsidiary or (z) applied to the payment or prepayment of any outstanding Indebtedness of the Company and its Subsidiaries that is not subordinated to the Notes (provided for in that if any such Indebtedness permits reborrowing by the Pooling Company or such Subsidiary, the commitment to relend is permanently reduced by the amount of such payment) and Servicing Agreement (B) after giving effect to such Disposition no Default or Event of Default would exist. Any prepayment of Notes pursuant to this Section 10.6 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement8.2.

Appears in 1 contract

Samples: Note Purchase Agreement (Caseys General Stores Inc)

Sale of Assets. It is Sell, convey, transfer or otherwise dispose of (whether in one transaction or in a series of transactions), without the express intent written consent of the Depositor and the Trustee that the conveyance Required Lenders, (i) more than 25% of its equity investments (measured as of the Assets underlying a Series date of such sale, conveyance, transfer or other disposition) in or (ii) more than 25% of the fair market value (measured as of the date of such sale, conveyance, transfer or other disposition) of the assets (excluding accounts receivable and current inventory held for sale) of either one of the following groups: Group I: Columbia Gas Transmission Corporation; Columbia Gulf Transmission Company Group II: Columbia Gas of Kentucky, Inc.; Columbia Gas of Maryland, Inc.; Columbia Gas of Ohio, Inc.; Columbia Gas of Pennsylvania, Inc.; Columbia Gas of Virginia, Inc.; provided, however, that in no event may the aggregate of all sales, conveyances, transfers and other dispositions by the Depositor to Borrower from the Trustee pursuant to Effective Date through the related Pooling Termination Date result in the sale, conveyance, transfer or other disposition, without the written consent of the Required Lenders, of (i) more than 25% of its equity investments (measured as of the date hereof) in or (ii) more than 25% of the fair market value (measured as of the date hereof) of the assets (excluding accounts receivable and Servicing Agreement be construed as a sale current inventory held for sale) of such Assets by either one of the Depositor to the Trustee. It is, above groups; and provided further, that any sales, conveyances, transfers and other dispositions shall not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" counted for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (this covenant to the extent that proceeds therefrom are reinvested in any of the Trustee has been instructed by the Depositor entities listed in Group I or the Master Servicer) shall take, Group II and only to the extent consistent that any debt incurred by such entity in connection with such reinvestment would have been permitted if the Pooling assets comprising such reinvestment were assets held as of the date of this Agreement; and Servicing Agreement, such actions as may be necessary to ensure provided still further that, if the Pooling and Servicing Agreement were deemed to create a security interest in any calendar year, sales, conveyances, transfers or other dispositions of property in the related Assets, such security interest would ordinary course of business with a value of up to $10,000,000 collectively for Groups I and II shall not be deemed to be a perfected security interest counted for purposes of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementthis covenant.

Appears in 1 contract

Samples: Credit Agreement (Columbia Energy Group)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrowers to obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent “Current Disposition”), and of all prior Dispositions after the date hereof (including amounts which were set aside for reinvestment pursuant to the second paragraph of this Section 2.10(d) but were not in fact so reinvested within one year) as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $30,000,000 then, no later than five Business Days after the occurrence of the partiesCurrent Disposition, the Borrowers will deliver to the Administrative Agent (which shall promptly provide a copy thereof to the Lenders) a statement, certified by a Senior Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below) in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (e) of this Section 2.10. Notwithstanding the foregoing, the Borrowers shall not be required to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest make a prepayment pursuant to Section 9-305 of the applicable UCC; and this paragraph (d) notifications with respect to persons holding such property, and acknowledgments, receipts or confirmations Net Available Proceeds from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest any Disposition in the related Assetsevent that the Borrowers advise the Administrative Agent at the time the Net Available Proceeds from such Disposition are received that they intend to reinvest such Net Available Proceeds in replacement assets pursuant to an Acquisition permitted under Section 8.05(d)(iv) hereof or otherwise as Capital Expenditures permitted under Section 8.12 hereof, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.so long as

Appears in 1 contract

Samples: Credit Agreement (Mediacom Capital Corp)

Sale of Assets. It is the express intent The Borrower will not, and will not permit any of the Depositor and the Trustee that the conveyance its Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale any of such Assets by the Depositor to the Trustee. It isits assets, further, not the intention of the Depositor business or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Howeverproperty or, in the event thatcase of any Restricted Subsidiary, notwithstanding any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the intent of the partiesBorrower or a Subsidiary Loan Party (or to qualify directors if required by applicable law), such Assets are held to continue to be property of the Depositor, then except: (a) the Pooling sale or other disposition of (i) obsolete or worn out property or other property not necessary for operations disposed of in the ordinary course of business and Servicing Agreement also shall be deemed (ii) property to be a security agreement within the meaning extent that (A) such property is simultaneously exchanged for credit against the purchase price of Article 9 similar replacement property or (B) the net proceeds of such disposition are promptly applied to the applicable UCCpurchase price of such replacement property; (b) the conveyance by the Depositor provided for sale of inventory in the Pooling ordinary course of business; (c) dispositions of property to the Borrower or a Restricted Subsidiary; provided, that if the transferor of such property is a Loan Party (a) the transferee thereof must be a Loan Party or (b) to the extent constituting an Investment, such Investment must be permitted pursuant to Section 7.4 in a Restricted Subsidiary that is not a Loan Party; (d) dispositions consisting of Investments permitted under Section 7.4 (other than Section 7.4(m)), transactions permitted under Section 7.3 or Restricted Payments permitted under Section 7.5 or consisting of Liens permitted under Section 7.2; (e) dispositions of property pursuant to sale and Servicing Agreement leaseback transactions, provided that (i) no Event of Default has occurred and is continuing or would result therefrom (other than any such disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), (ii) such disposition shall be deemed for no less than the fair market value of such property at the time of such disposition, (iii) the aggregate proceeds of sale and leaseback transactions permitted pursuant to be a grant by this clause (e) shall not in any Fiscal Year exceed the Depositor to the Trustee greater of a security interest in all (i) $10,000,000 and (ii) 15% of TTM Consolidated EBITDA as of the Depositor's right, title applicable date of determination and interest in (iv) the Borrower and to the Assets and all amounts payable to the holders its Restricted Subsidiaries shall receive not less than 75% of the Assets in accordance with the terms thereof consideration for such sale and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether leaseback transaction in the form of cash, instruments, securities cash or other property, and including without limitation all amounts from time to time held or invested in any related Reserve FundCash Equivalents; (cf) the possession by the Trustee dispositions of Cash Equivalents (or its agent of items of property Investments that constitute instrumentswere Cash Equivalents when made); provided, money, negotiable documents or chattel paper that such disposition shall be deemed to be "possession by for no less than the secured party" for purposes fair market value of perfecting such property at the security interest pursuant to Section 9-305 time of such disposition; (g) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor Borrower and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takeRestricted Subsidiaries, to the extent consistent with the Pooling and Servicing Agreement, such actions taken as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.whole,

Appears in 1 contract

Samples: Revolving Credit and Term (Amneal Pharmaceuticals, Inc.)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event that, notwithstanding that the intent Net Available Proceeds of any Disposition of Property of the partiesCompany or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) other than an Excluded Disposition (herein, the "CURRENT DISPOSITION"), and of all prior Dispositions of Property of the Company or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) as to which a prepayment has not yet been made under this Section 2.09(b), shall exceed $1,000,000 then, no later than 5 Business Days prior to the occurrence of the Current Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and the Company will prepay the Loans (or cause the Loans to be prepaid) and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions not theretofore used to prepay Facility B Loans, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and extent specified in paragraph (e) below. In the case of all amounts payable Dispositions of Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement, the Company will make (or cause to the holders be made) prepayments of the Assets in accordance with Facility C Loans and the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility D Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Second Restated Supplemental Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Suiza Foods Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 9.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition other than an Excluded Disposition (herein, notwithstanding the intent "CURRENT DISPOSITION"), and of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.09(c), shall exceed $500,000 then, no later than 5 Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and the Company will prepay the Loans (or cause the Loans to be prepaid), and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (f) below; PROVIDED that, with respect to any Current Disposition that includes any Eligible Inventory or Eligible Receivables, the Company shall deliver to the holders Agent a statement of a Responsible Financial Officer of the Assets in accordance with Company specifying the terms thereof and all proceeds portion of Net Available Proceeds of the conversion, voluntary Current Disposition and of all prior Dispositions as to which a prepayment has not yet been made hereunder relating to such Inventory or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor Receivables and the Trustee Company shall prepay the Facility A Loans (to the extent the Trustee has been instructed by the Depositor or the Master Servicerand/or provide cover for Letter of Credit Liabilities as specified in paragraph (h) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementbelow).

Appears in 1 contract

Samples: Credit Agreement (Suiza Foods Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Required Holders pursuant to Section 19.1 to any Asset Sale not otherwise permitted hereunder, in the event that (i) the Net Asset Sale Proceeds of any Asset Sale (herein, the “Current Asset Sale”), and of all prior Asset Sales as to which a prepayment has not yet been made under this paragraph, shall exceed $1,000,000 or (ii) the aggregate Net Asset Sale Proceeds of all Asset Sales for the period commencing on April 18, 2005 and ending on the Maturity Date shall exceed $5,000,000 then, no later than five Business Days prior to the occurrence of the Current Asset Sale, the Company will deliver to the Holders a statement, certified by an Authorized Officer of the Company, in form and detail satisfactory to such Holders, of the amount of the Net Asset Sale Proceeds of the Current Asset Sale and of all such prior Asset Sales and will immediately prepay the Senior Subordinated Notes in an aggregate amount equal to one hundred percent (100%) of the Net Asset Sale Proceeds of the Current Asset Sale and such prior Asset Sales, less the amount thereof required to be applied (including amounts theretofore or concurrently therewith applied as so required) in accordance with, or pursuant to, the terms of the Credit Agreement as in effect on the Closing Date to permanently pay or permanently prepay the Loans under the Credit Agreement (it being noted, for the avoidance of doubt, that if the relevant terms of the Credit Agreement are amended, waived or otherwise modified with the effect that the amount required to be applied in accordance with, or pursuant to, the terms of the Credit Agreement to pay or prepay the Loans under the Credit Agreement is reduced, the amount of such reduction shall not be construed as being required to be applied to permanently pay or permanently prepay the Loans under the Credit Agreement for the purposes of this Section 8.4(d)), provided that, notwithstanding the intent of foregoing, the parties, such Assets are held Company shall not be required to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be make a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and prepayment under this clause (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.

Appears in 1 contract

Samples: Note Purchase Agreement (Digitalglobe Inc)

Sale of Assets. It is the express intent (a) The power to effect any sale (a “Sale”) of the Depositor and the Trustee that the conveyance any portion of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling Sections 5.4 and Servicing Agreement 5.5 shall not be construed exhausted by any one or more Sales as a sale to any portion of such Assets remaining unsold, but shall continue unimpaired until the entire Assets shall have been sold or all amounts secured by the Depositor Assets shall have been paid. The Trustee may upon notice to the Trustee. It isDebtholders, furtherand shall, not the intention upon direction of a Majority of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earningsControlling Class, from time to time held or invested postpone any Sale by public announcement made at the time and place of such Sale. The Trustee hereby expressly waives its rights to any amount fixed by law as compensation for any Sale; provided that the Trustee shall be authorized to deduct the reasonable costs, charges and expenses (including but not limited to costs and expenses of counsel) incurred by it in connection with such Sale from the related Certificate Account or Distribution Account, whether in proceeds thereof notwithstanding the form provisions of cash, instruments, securities Section 6.7 or other propertyapplicable terms hereof. (b) The Trustee may bid for and acquire any portion of the Assets in connection with a public Sale thereof, and may pay all or part of the purchase price by crediting against amounts owing on the Secured Debt or other amounts secured by the Assets or other amounts secured by the Assets, all or part of the net proceeds of such Sale after deducting the reasonable costs, charges and expenses (including without limitation all but not limited to costs and expenses of counsel) incurred by the Trustee in connection with such Sale notwithstanding the provisions of Section 6.7 hereof or other applicable terms hereof. The Secured Debt need not be produced in order to complete any such Sale, or in order for the net proceeds of such Sale to be credited against amounts from time to time held owing on the Debt. The Trustee may hold, lease, operate, manage or invested otherwise deal with any property so acquired in any related Reserve Fund; manner permitted by law in accordance with this Indenture. (c) If any portion of the possession by Assets consists of securities issued without registration under the Securities Act (“Unregistered Securities”), the Trustee or its agent may seek an Opinion of items Counsel, or, if no such Opinion of property that constitute instruments, money, negotiable documents or chattel paper shall Counsel can be deemed to be "possession by obtained and with the secured party" for purposes consent of perfecting the security interest pursuant to Section 9-305 a Majority of the applicable UCC; Controlling Class, seek a no action position from the Securities and Exchange Commission or any other relevant federal or State regulatory authorities, regarding the legality of a public or private Sale of such Unregistered Securities. (d) notifications The Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Assets in connection with a Sale thereof, without recourse, representation or warranty. In addition, the Trustee is hereby irrevocably appointed the agent and attorney in fact of the Issuer to persons holding such propertytransfer and convey its interest in any portion of the Assets in connection with a Sale thereof, and acknowledgments, receipts to take all action necessary to effect such Sale. No purchaser or confirmations from persons holding transferee at such property, a sale shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of bound to ascertain the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.Trustee’s

Appears in 1 contract

Samples: Indenture and Security Agreement (Nuveen Churchill Direct Lending Corp.)

Sale of Assets. It is Without the express intent prior written consent of Lender, no -------------- Credit Party will, directly or indirectly, sell, lease or otherwise dispose of all or any substantial part of its assets, other than (i) sales of inventory (including Hydrocarbon production) in the ordinary course of business, (ii) sales by Borrowers of Proven Reserves which do not exceed $500,000 in the aggregate during any six (6) month period commencing upon any Determination Date, provided that upon prior written consent of Lender, Borrowers may sell -------- Proven Reserves with an aggregate sales price in excess of $500,000 during such period, and provided further that (x) to the extent the aggregate amount of -------- ------- proceeds from such sales do not exceed $500,000 during any applicable period of determination, the Borrowing Base shall be reduced by the amount of such proceeds and (y) to the extent the aggregate amount of proceeds from such sales exceed $500,000 during any applicable period of determination, the Borrowing Base shall be reduced by the lesser of (A) the amount of such proceeds or (B) such amount as such Proven Reserves comprise of the Depositor Borrowing Base determined by Lender in its sole discretion, and the Trustee that the conveyance (iii) PGP may transfer interests in and to certain of the Assets underlying a Series by the Depositor its Uinta Basin properties only to the Trustee extent of depths lying below the Green River formation pursuant to the related Pooling Xxxx Farmout and Servicing Agreement be construed as a sale at the time of such transfer, Lender will release such properties from the Lien of the PGP Oil and Gas Mortgage. Notwithstanding the foregoing, Lender agrees that it will not unreasonably withhold its consent to the transfer by PGP of the Antelope Creek Gathering Assets to a Person in exchange for an equity interest in such Person provided that (i) prior to making such transfer PGP and such Person enter into a gathering agreement on customary and reasonable terms pursuant to which such Person agrees to gather gas produced from PGP's properties serviced by the Depositor Antelope Creek Gathering Assets, (ii) PGP grants to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed Lender a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling first and Servicing Agreement also shall be deemed to be a prior security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets its equity interest in such Person pursuant to a Pledge Agreement in form and all amounts payable substance acceptable to Lender, and (iii) no Event of Default has occurred which is continuing. Simultaneously with granting its consent pursuant to the holders of preceding paragraph, Lender will, at Borrowers' expense, release the Antelope Creek Gathering Assets in accordance with from the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Liens created by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; PGP Oil and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementGas Mortgage.

Appears in 1 contract

Samples: Loan Agreement (Petroglyph Energy Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in Borrowers to obtain the event that, notwithstanding the intent consent of the partiesLender and the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, such Assets are held no later than five Business Days prior to continue to be property the occurrence of the Depositorany Disposition, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) Borrower will deliver to the conveyance Lender and the Agent a statement, certified by the Depositor provided for chief financial officer or treasurer of such Borrower in the Pooling form and Servicing Agreement shall be deemed to be a grant by the Depositor detail satisfactory to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntaryAgent, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 amount of the applicable UCC; and (d) notifications to persons holding Net Available Proceeds of such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takeDisposition and, to the extent consistent such Net Available Proceeds (when taken together with the Pooling and Servicing AgreementNet Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.11(d)) shall exceed C$5,000,000, such actions as may the Borrowing Base shall be necessary subject to ensure thatautomatic reduction and, if the Pooling amount of Loans and Servicing Agreement were deemed the Letter of Credit Liabilities (with the amounts of Loans and Letter of Credit Liabilities in U.S. Dollars expressed as an Equivalent Amount in Canadian Dollars) exceeds the Borrowing Base (as reduced), such amount shall be applied as provided in clause (e) below, in an aggregate amount equal to create 100% of the Net Available Proceeds of such Disposition, or such lesser amount as is specified in a security interest written notice from the Majority Lenders (together with 100%, or such lesser amount as is specified in a written notice from the Majority Lenders, of the Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.11(d)), such reduction to be effected in the related Assetsmanner and to the extent specified in clause (e) of this Section 2.11. Notwithstanding the foregoing, such security interest would the Borrowers shall not be deemed required to prepay Loans (except BA Loans) (and/or provide cover for Letter of Credit Liabilities and BA Loans as specified in clause (f) below) and the Borrowing Base shall not be a perfected security interest subject to automatic reduction upon any sale of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementProperty permitted pursuant to Section 8.05 hereof.

Appears in 1 contract

Samples: Credit Agreement (Canadian Forest Oil LTD)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(e), shall exceed $15,000,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the anticipated Net Available Proceeds of the Current Disposition and of all such prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(e) and will prepay, upon receipt of such Net Available Proceeds, Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (h) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions as to which a prepayment has not been made under this Section 2.10(e) in excess of $15,000,000, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable to extent specified in paragraph (g) of this Section 2.10. Notwithstanding the holders foregoing, the Disposition for fair value of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper Part A Property shall not be deemed to be a "possession by the secured partyDisposition" for purposes of perfecting the security interest pursuant preceding sentence. If, however, any Part B Property is disposed of within one year prior to Section 9-305 or after the Disposition of Part A Property located in the same geographical area, the Company shall, within one year of the applicable UCC; and last of such Dispositions, apply the Net Available Proceeds of such Dispositions to (di) notifications to persons holding such property, and acknowledgments, receipts the purchase or confirmations from persons holding such property, shall be deemed notifications to, construction of a replacement facility or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicableii) the prepayment of the Trustee Loans (and/or the provision of cover for the purpose Letter of perfecting such security interest under applicable law. The Depositor Credit Liabilities as specified in paragraph (h) below) and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions reduction of Commitments as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementprovided above.

Appears in 1 contract

Samples: Credit Agreement (United Stationers Supply Co)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a “DISPOSITION”), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.3, including the sale of receivables pursuant to asset securitization transactions, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does 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 and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in Section 10.3(c) of the preceding sentence to the extent that (i) such assets were acquired or constructed not more than 180 days prior to Closing and are leased back by the Company or any Restricted Subsidiary, as lessee, within 180 days of the acquisition or construction thereof, or (ii) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Restricted Subsidiary or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Note Purchase Agreement (Donaldson Co Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans hereunder other than an Excluded Disposition (herein, notwithstanding the intent "CURRENT DISPOSITION"), and of all prior Dispositions of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans hereunder as to which a prepayment has not yet been made under this Section 2.09(b), shall exceed $500,000 then, no later than 5 Business Days prior to the CREDIT AGREEMENT 23 occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and the Company will prepay the Facility C Loans (or cause the Facility C Loans to be prepaid), in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets extent specified in paragraphs (e)(i) and all amounts payable (e)(ii) below. In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans, such excess shall be applied to the holders prepayment of the Assets Facility B Loans in accordance with the terms thereof and all proceeds of the conversionExisting Credit Agreement. In the case of all Dispositions of Property other than those referred to in this paragraph (b), voluntary the Company will make (or involuntary, cause to be made) prepayments of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in Facility A Loans and the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility B Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Existing Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Suiza Foods Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans or Facility D Loans hereunder other than an Excluded Disposition (herein, notwithstanding the intent "CURRENT DISPOSITION"), and of all prior Dispositions of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans or Facility D Loans hereunder as to which a prepayment has not yet been made under this Section 2.09(b), shall exceed $1,000,000 then, no later than 5 Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition CREDIT AGREEMENT and of all such prior Dispositions and the Company will prepay the Facility C Loans or Facility D Loans (or cause the Facility C Loans or Facility D Loans to be prepaid), in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets extent specified in paragraph (e) below. In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans and all amounts payable Facility D Loans, such excess shall be applied to the holders prepayment of the Assets Facility B Loans in accordance with the terms thereof and all proceeds of the conversionExisting Credit Agreement. In the case of all Dispositions of Property other than those referred to in this paragraph (b), voluntary the Company will make (or involuntary, cause to be made) prepayments of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in Facility A Loans and the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility B Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Existing Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Suiza Foods Corp)

Sale of Assets. It is Other than in the express intent ordinary course of business or in connection with a Sale and Leaseback Transaction, no Co-Issuer will, or will permit the Company or any of its Restricted Subsidiaries to, directly or indirectly, in a single transaction or a series of transactions, sell, lease, transfer, abandon or otherwise dispose of or suffer to be sold, leased, transferred, abandoned or otherwise disposed of (collectively, "TRANSFER") assets in any fiscal year in excess of 15% of the Depositor and Consolidated Total Assets ("SUBSTANTIAL ASSETS") determined as of the Trustee end of the immediately preceding fiscal year or if such Transfer of Substantial Assets in the aggregate in more than one fiscal year would exceed 25% of Consolidated Total Assets determined as the average of Consolidated Total Assets determined as of the fiscal year end of the three fiscal years immediately preceding the date of determination, unless the proceeds of such Transfer of Substantial Assets are used within 180 days to (i) acquire productive assets or (ii) reduce Indebtedness of the Co-Issuers, the Company or its Restricted Subsidiaries which is not junior in right of payment to the Notes. Notwithstanding the foregoing, the Purchasers acknowledge that the conveyance Co-Issuers, Alternative Billing Services, Inc. and Western Medical Services (NY), Inc. have entered into the Asset Purchase Agreement with Intrepid Companies, Inc. dated July 22, 1999 (the "ASSET PURCHASE AGREEMENT") and consent to the consummation of the Assets underlying a Series by transactions contemplated thereunder (the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However"WMS DISPOSITION"), in the event thatwhich event, notwithstanding the intent each Purchaser shall authorize a release of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assetsassets which are the subject of the WMS Disposition. Upon (i) WMS's receipt of substantially all of the customer remittances payable to WMS which are outstanding as of August 9, 1999 and application thereof to the applicable customer accounts, and (ii) WMS's distribution of such security remittances and all other cash or other assets of WMS to the Company, WSS or one of the Restricted Subsidiaries, and provided that WMS has not purchased or otherwise obtained an interest would in any other assets, (x) WMS's obligation as a Co-Issuer shall be deemed to be a perfected security interest extinguished and the Purchasers will tender their existing Notes upon the request of first priority under applicable law and WSS in exchange for new Notes in which WSS will be maintained as such throughout the term sole issuer; and (y) each Purchaser shall, upon request of WSS, execute a release of WMS from its obligations under this Agreement, the Pooling Other Agreements, the Notes and Servicing Agreementits collateral described in the Security Agreement which has not been previously released.

Appears in 1 contract

Samples: Westaff (Westaff Inc)

Sale of Assets. It is the express intent The Borrower shall not, and shall not permit any of the Depositor and the Trustee that the conveyance its Subsidiaries to, convey, lease, sell, transfer or otherwise dispose of the Assets underlying a Series by the Depositor (or agree to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale do so at any future time) all or any part of such Assets by the Depositor to the Trustee. It isits property or assets, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then except (a) sales of inventory in the Pooling ordinary course of business, (b) sales of property which is uneconomic, obsolete or no longer useful in its business provided that the aggregate net book value of all property so sold does not exceed $4,000,000 per fiscal year; PROVIDED, HOWEVER, that the Borrower or such Subsidiary, as the case may be, may only make sales permitted pursuant to clause (b) above if it receives consideration at the time of such sale at least equal to the Fair Market Value of the property sold, and Servicing Agreement also at least 50% of the consideration therefor received by the Borrower or such Subsidiary, as the case may be, is in the form of cash; PROVIDED, FURTHER, that the amount of (i) any liabilities of the Borrower or such Subsidiary (as shown on the Borrower's or such Subsidiary's most recent balance sheet or in the notes thereto), as the case may be, that are assumed by the purchaser in such transactions (other than securities which are subordinated to the Obligations) and (ii) any cash equivalents, notes or other obligations received by the Borrower or such Subsidiary, as the case may be, from such transferee that are immediately (and in any event within ninety (90) days) converted by the Borrower or such Subsidiary, as the case may be, into cash, shall be deemed to be a security agreement within cash for purposes of this Section, (c) in addition to the meaning of Article 9 of the applicable UCC; sales permitted pursuant to clause (b) above, the conveyance by the Depositor provided for sales of assets listed in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's rightSchedule 7.5(c) hereof, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications Intentionally Omitted - 1999, (e) subject in each case to persons holding the review and written approval of the Agent (which approval shall be in the Agent's sole discretion) leases of Real Property during such propertyperiods that such Real Property is not being used in the business of the Borrower, PROVIDED, HOWEVER, that any such lease shall not be for a period longer than 24 months, and acknowledgments(f) a sale, receipts transfer or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) disposition of the Trustee for Hatteras Business pursuant to the purpose of perfecting such security interest under applicable law. The Depositor Hatteras Internal Transfer and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementHatteras Disposition.

Appears in 1 contract

Samples: Credit Agreement (Genmar Holdings Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower to obtain the consent of the Lender and the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, no later than five Business Days prior to the occurrence of any Disposition, the applicable Borrower will deliver to the Lender Group a statement, certified by the chief financial officer or treasurer of such Borrower, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling form and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor detail satisfactory to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntaryAgent, of the foregoing into cashamount of the Net Available Proceeds of such Disposition and, instrumentsif the Net Available Proceeds of such Disposition together with the aggregate of all other Dispositions during the current Determination Period is in excess of $5,000,000 or the Equivalent Amount in Canadian Dollars, securities the Combined Majority Lenders, based on their review of the statement referred to in this Section 2.11(d) may, in their sole discretion, reduce the Borrowing Base in an aggregate amount not in excess of 100% of the Net Available Proceeds of such Disposition, or other propertysuch lesser amount as is specified in a written notice from the Combined Majority Lenders. If a Borrowing Base Deficiency results from such reduction, then the Borrowers shall, notwithstanding Section 2.11(a) to the contrary, immediately prepay the Loans (including without limitation all amountsSwingline Loans) (and/or provide cover for Letter of Credit Liabilities and BA Loans) with the Net Available Proceeds to cure such deficiency. Notwithstanding the foregoing, other than investment earnings, from time the Borrowers shall not be required to time held prepay the Loans (including Swingline Loans)(and/or invested in provide cover for the related Certificate Account Letter of Credit Liabilities or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest BA Loans pursuant to Section 9-305 2.11(f) hereof), and the Borrowing Base shall not be subject to automatic reduction upon any sale of Property by the Borrower or any Subsidiary Borrower or sale of any of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest Forest Pledged Properties in the related Assets, such security interest would be deemed case of Forest permitted pursuant to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.05 hereof."; and

Appears in 1 contract

Samples: Canadian Forest Oil LTD

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event that, notwithstanding that the intent Net Available Proceeds of any Disposition of Property of the partiesCompany or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) other than an Excluded Disposition (herein, the "CURRENT DISPOSITION"), and of all prior Dispositions of Property of the Company or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement) as to which a prepayment has not yet been made under this Section 2.09(b), shall exceed $1,000,000 then, no later than 5 Business Days prior to the occurrence of the Current Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and the Company will prepay CREDIT AGREEMENT the Loans (or cause the Loans to be prepaid) and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions not theretofore used to prepay Facility B Loans, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and extent specified in paragraph (e) below. In the case of all amounts payable Dispositions of Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans or Facility D Loans under the Second Restated Supplemental Credit Agreement, the Company will make (or cause to the holders be made) prepayments of the Assets in accordance with Facility C Loans and the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility D Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Second Restated Supplemental Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Suiza Foods Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition occurring after the Amendment No. 1 Effective Date (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions occurring after the Amendment No. 1 Effective Date as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $15,000,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Officer of the Company, in form and detail reasonably satisfactory to the Administrative Agent, of the amount of the anticipated Net Available Proceeds of the Current Disposition and of all such prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(d) and will prepay, upon receipt of such Net Available Proceeds, Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (g) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions as to which a prepayment has not been made under this Section 2.10(d) in excess of $15,000,000, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (f) of this Section 2.10. Notwithstanding the foregoing, neither the Disposition of Receivables by the Company or any of its Subsidiaries to the holders of Receivables Company or to the Assets United Stationers Receivables Master Trust in accordance connection with the terms thereof and all proceeds Receivables Financing nor the Disposition for fair value of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper Part A Property shall be deemed to be a "possession by the secured partyDisposition" for purposes of perfecting the security interest pursuant preceding sentence. If, however, any Part B Property is disposed of within one year prior to Section 9-305 or after the Disposition of Part A Property located in the same geographical area, the Company shall, within one year of the applicable UCC; and last of such Dispositions, apply the Net Available Proceeds of such Dispositions to (di) notifications to persons holding such property, and acknowledgments, receipts the purchase or confirmations from persons holding such property, shall be deemed notifications to, construction of a replacement facility or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicableii) the prepayment of the Trustee Loans (and/or the provision of cover for the purpose Letter of perfecting such security interest under applicable law. The Depositor Credit Liabilities as specified in paragraph (g) below) and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions reduction of Commitments as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementprovided above."

Appears in 1 contract

Samples: Credit Agreement (United Stationers Supply Co)

Sale of Assets. It is Without the express intent prior written consent of the Depositor and the Trustee that the conveyance Required Banks, no Credit Party will, directly or indirectly, sell, lease or otherwise dispose of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale all or any substantial part of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amountsits assets, other than investment earnings, from time to time held or invested (i) sales of inventory (including Hydrocarbon production) in the related Certificate Account or Distribution Accountordinary course of business, whether (ii) sales by Borrower of Proven Reserves which do not exceed $500,000 in the form aggregate during any six (6) month period, provided, that, upon prior written consent of cashRequired Banks, instruments, securities or other propertyBorrower may sell Proven Reserves with an aggregate sales price in excess of $500,000 during such period, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; provided further that (cx) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed aggregate amount of proceeds from such sales do not exceed $500,000 during any applicable period of determination, the Borrowing Base shall be reduced by the Depositor or the Master Serviceramount of such proceeds, and (y) shall take, to the extent consistent with the Pooling aggregate amount of proceeds from such sales exceed $500,000 during any applicable period of determination, the Borrowing Base shall be reduced by the lesser of (A) the amount of such proceeds or (B) such amount as such Proven Reserves comprise of the Borrowing Base determined by Required Banks in their sole discretion, and Servicing Agreement(iii) Borrower may transfer interests in and to certain of its Uinta Basin properties only to the extent of depths lying below the Green River formation pursuant to the Sego Xxxmout and at the time of such transfer, Banks will, or will cause Administrative Agent to, release such actions as may be necessary properties from the Liens of the Mortgages. Notwithstanding the foregoing, Banks agree that they will not unreasonably withhold their consent to ensure the transfer by Borrower of the Antelope Creek Gathering Assets to a Person in exchange for an equity interest in such Person; provided, that, if (a) prior to making such transfer Borrower and such Person enter into a gathering agreement on customary and reasonable terms pursuant to which such Person agrees to gather gas produced from Borrower's properties serviced by the Pooling Antelope Creek Gathering Assets, (b) Borrower grants to Administrative Agent (for the ratable benefit of each Bank) a first and Servicing Agreement were deemed to create a prior security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.and

Appears in 1 contract

Samples: Loan Agreement (Petroglyph Energy Inc)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a “Disposition”), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Xxxxxxxxx Company, Inc. Note Purchase Agreement Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.3, including the sale of receivables pursuant to asset securitization transactions, provided that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does not exceed 20% of Consolidated Total Assets as of the end of the immediately preceding fiscal year. For purposes of this Section 10.3, if the Company designates any one or more Restricted Subsidiaries as an Unrestricted Subsidiary or Unrestricted Subsidiaries and the aggregate book value of the assets of all such Restricted Subsidiaries, at the time of such designation, exceeds 20% of Consolidated Total Assets (determined as of the most recently ended fiscal quarter), then the book value of all such assets in excess of such 20% of Consolidated Total Assets shall be treated as Dispositions for purposes of this Section 10.3. Notwithstanding the foregoing, 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 the Pooling foregoing limitation and Servicing Agreement computation contained in Section 10.3(c) of the preceding sentence to the extent that (i) such assets were acquired or constructed not more than 180 days prior to Closing and are leased back by the Company or any Restricted Subsidiary, as lessee, within 180 days of the acquisition or construction thereof, or (ii) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Restricted Subsidiary or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Note Purchase Agreement (Donaldson Co Inc)

Sale of Assets. It is Except as permitted by Section 10.7, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "Disposition"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) Dispositions by a Restricted Subsidiary to the conveyance Company or another Wholly Owned Restricted Subsidiary or (c) Dispositions not otherwise permitted by clauses (a) or (b) of this Section 10.8, provided that (i) each such Disposition is for a consideration at least equal to the fair market value of the property subject thereto, (ii) the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.8(c) does not exceed 15% of Consolidated Net Assets as of the end of the immediately preceding fiscal year, (iii) the operations of such assets sold pursuant to this Section 10.8(c) generated less than 15% of the consolidated operating profit of the Company and its Restricted Subsidiaries for the immediately preceding fiscal year, and (iv) after giving effect to such Disposition no Default or Event of Default would exist. Notwithstanding the foregoing, 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 the foregoing limitation and computation contained in clause (c) of the preceding sentence to the extent that (i) each such Disposition is for a consideration at least equal to the fair market value of the property subject thereto, and (ii) the net proceeds from such Disposition are within 180 days of such Disposition (A) reinvested in productive assets by the Depositor provided for in Company or a Restricted Subsidiary or (B) applied to the Pooling and Servicing Agreement payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is PARI PASSU with or senior to the Notes. Any prepayment of Notes pursuant to this Section 10.8 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Note Purchase Agreement (Lincare Holdings Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans hereunder other than an Excluded Disposition (herein, notwithstanding the intent "CURRENT DISPOSITION"), and of all prior Dispositions of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans hereunder as to which a prepayment has not yet been made under this Section 2.09(b), shall exceed $500,000 then, no later than 5 Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and the Company will prepay the Facility C Loans (or cause the Facility C Loans to be prepaid), in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets extent specified in paragraphs (e)(i) and all amounts payable (e)(ii) below. In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans, such excess shall be applied to the holders prepayment of the Assets Facility B Loans in accordance with the terms thereof and all proceeds of the conversionExisting Credit Agreement. In the case of all Dispositions of Property other than those referred to in this paragraph (b), voluntary the Company will make (or involuntary, cause to be made) prepayments of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in Facility A Loans and the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility B Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Existing Credit Agreement.

Appears in 1 contract

Samples: Execution Copy (Suiza Foods Corp)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "DISPOSITION"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverSubsidiaries, in the event thatone or more transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Subsidiary or by a Subsidiary to the Company or another Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.3, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does not exceed 15% of Consolidated Total Assets of the Company as of the end of the immediately preceding fiscal year. Notwithstanding the foregoing, the Company may, or may permit any Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in clause (c) of the preceding sentence to the extent that (x) such assets are leased back by the Company or any Subsidiary, as lessee, within 180 days of the Disposition thereof, or (y) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Subsidiary consistent with Section 10.7 (and in no event in assets relating to a discontinued operation at the time of reinvestment) or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Note Assumption and Exchange Agreement (Andrew Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower to obtain the consent of the Required Lenders pursuant to Section 5.02(d) to any Disposition not otherwise permitted hereunder, on January 5, 1999 the Commitments shall be reduced, and, to the extent required by Section 2.07(c), the Borrower shall prepay the Advances (and/or provide cover for Letter of Credit Liabilities as specified in Section 2.07(d)), in an aggregate amount equal to (A) 100% of the event Net Available Proceeds of all Dispositions theretofore consummated minus (B) the amount of such Net Available Proceeds theretofore reinvested in the Borrower's "Product Technology", "Customer Solutions" and "Growth Technology" businesses (PROVIDED that, notwithstanding if the intent property that was the subject of the partiessuch Disposition constituted Pledged Property, such Assets are held to continue Net Available Proceeds must be so reinvested in property constituting Pledged Property subject (or required to be property subject) to the Liens under the Security Documents); provided that (1) for purposes of the Depositor, then this clause (ai) the Pooling and Servicing Agreement also aggregate Net Available Proceeds of each Disposition or series of related Dispositions shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; reduced by $10,000,000 (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement but shall not be deemed to be a grant by the Depositor less than zero) and (2) neither Permitted Sale-Leaseback Transactions, sales of Receivables nor Dispositions identified on Schedule I to the Trustee of a security interest in all of the Depositor's right, title Limited Waiver and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper Amendment No. 2 hereto shall be deemed to be "possession by the secured partyDispositions" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and this clause (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementi)."

Appears in 1 contract

Samples: Imation Corp

Sale of Assets. It is No later than five Business Days prior to the express intent occurrence of any Disposition, the Depositor and Company will cause Canadian Forest to deliver to the Trustee that the conveyance of the Assets underlying Lenders a Series statement, certified by the Depositor chief financial officer or treasurer of such company in form and detail satisfactory to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntaryAdministrative Agent, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 amount of the applicable UCC; and (d) notifications to persons holding Net Available Proceeds of such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takeDisposition and, to the extent consistent such Net Available Proceeds (when taken together with the Pooling and Servicing AgreementNet Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.11(f)) shall exceed C$5,000,000, such actions as may the Borrowing Base shall be necessary subject to ensure thatautomatic reduction and, if the Pooling amount of the Loans (including Swingline Loans), Bankers' Acceptance Liabilities and Servicing Agreement were deemed Letter of Credit Liabilities (with the amount of Loans and the Letter of Credit Liabilities in U.S. Dollars expressed as an Equivalent Amount in Canadian Dollars) exceeds the Borrowing Base (as reduced), such amount shall be applied as provided in clause (g) below, in an aggregate amount equal to create 100% of the Net Available Proceeds of such Disposition, or such lesser amount as is specified in a security interest written notice from the Majority Lenders (together with 100%, or such lesser amount as is specified in a written notice from the Majority Lenders, of the Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.11(f)), such reduction to be effected in the related Assetsmanner and to the extent specified in clause (g) of this Section 2.11. Notwithstanding the foregoing, such security interest would the Company shall not be deemed required to prepay Loans (and/or provide cover for Letter of Credit Liabilities, BA Loans and Bankers' Acceptance Liabilities pursuant to Section 2.11(h) hereof) and the Borrowing Base shall not be a perfected security interest subject to automatic reduction, upon any sale of first priority under applicable law and will be maintained as such throughout the term Property by Canadian Forest or any Subsidiary Borrower or sale of any of the Pooling and Servicing Forest Pledged Properties in the case of Forest permitted pursuant to Section 8.05 of the Canadian Forest Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (Canadian Forest Oil LTD)

Sale of Assets. It is Except as permitted by Section 10.8, the express intent Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of merger (collectively, a “Disposition”), any property, including Capital Stock of Subsidiaries, in one transaction or a series of transactions, to any Person, other than (a) Dispositions in the ordinary course of business, (b) Dispositions by the Company to a Wholly-Owned Subsidiary or by a Subsidiary to the Company or to a Wholly-Owned Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.7, provided that (1) after giving effect thereto, no Default or Event of Default exists and (2) the aggregate net book value of all property so disposed of in any fiscal year of the Depositor and the Trustee that the conveyance Company pursuant to this Section 10.7(c) does not exceed 10% of Consolidated Total Assets as of the Assets underlying end of the immediately preceding fiscal year of the Company. Notwithstanding the foregoing, the Company may, or may permit any Subsidiary to, make a Series Disposition of property acquired or constructed by the Depositor Company or any Subsidiary and such property shall not be subject to or included in the foregoing limitation and computation contained in clause (c) of the preceding paragraph to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of extent that (i) such Assets property is leased back by the Depositor to the Trustee. It isCompany or a Subsidiary, furtheras lessee, not the intention within 365 days of the Depositor acquisition or the Trustee construction thereof; provided, that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent case of the parties, such Assets are held to continue to be property of the DepositorCompany, then such property was acquired or constructed by the Company after the Closing Date or (aii) the Pooling and Servicing Agreement also shall be deemed net proceeds from such Disposition are, within 365 days of such Disposition, either (A) reinvested in operating assets by the Company or a Subsidiary to be a security agreement within used in the meaning of Article 9 principal business of the applicable UCC; Company or such Subsidiary or (bB) applied to the conveyance by payment or prepayment of any outstanding Indebtedness of the Depositor Company or any Subsidiary which Indebtedness is not subordinated to the Notes, provided for that in the Pooling and Servicing Agreement course of making such application the Company shall be deemed offer to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets prepay each outstanding Note in accordance with Section 8.6 in a principal amount which equals the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" Ratable Portion for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementNote.

Appears in 1 contract

Samples: Note Purchase Agreement (Essential Utilities, Inc.)

Sale of Assets. It is During any fiscal year, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of any assets, in one or a series of transactions, other than in the ordinary course of business, to any Person, other than the Company or, in the case of the Depositor and THC Systems, Inc., to a Wholly-Owned Restricted Subsidiary Guarantor or, in the Trustee that case of all other Restricted Subsidiaries, to a Majority-Owned Restricted Subsidiary Guarantor (collectively a "Disposition"), if after giving effect to such Disposition, the conveyance aggregate book value of all Dispositions made during such fiscal year would exceed ten percent (10%) of Consolidated Tangible Assets as of the Assets underlying end of the immediately preceding fiscal year. Notwithstanding the foregoing, the Company may make a Series by Disposition in excess of the Depositor to aforesaid percentage if the Trustee pursuant to Company shall, within 180 days after such Disposition, (a) use pro rata the related Pooling and Servicing Agreement be construed as a net proceeds from the sale of such Assets by assets exceeding ten percent (10%) to invest in other tangible Property and of at least equivalent value for use in the Depositor to the Trustee. It is, further, not the intention business of the Depositor Company and its Restricted Subsidiaries or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) with respect to the conveyance by net proceeds from Dispositions exceeding ten percent (10%) derived other than from a Camden Disposition, to prepay Funded Debt, including the Depositor provided for in Notes, on a pro rata basis among all issuers of such Funded Debt, including the Pooling and Servicing Agreement shall be deemed Noteholders (subject to the right, to which the Company agrees, of any Noteholders to elect not to be a grant by the Depositor so prepaid), subject to the Trustee prepayment requirements of Section 2.2(a) and at the price set forth in Section 2.2(b). With respect to a security interest in all of the Depositor's rightCamden Disposition occurring prior to March 1, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion1997, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that such Camden Disposition shall not constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" a Disposition for purposes of perfecting this Section 7.10. With respect to a Camden Disposition occurring after March 1, 1997, the security interest pursuant to Section 9-305 net proceeds of such Camden Disposition, plus proceeds of other Dispositions made during the same fiscal year which exceed in the aggregate, ten percent (10%) of Consolidated Tangible Net Assets as of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such propertyend of the immediately preceding fiscal year, shall be deemed notifications toused to prepay Funded Debt, or acknowledgmentsincluding the Notes, receipts or confirmations fromon a pro rata basis among all issuers of such Funded Debt, financial intermediariesincluding the Noteholders (subject to the right, bailees or agents (as applicableto which the Company agrees, of any Noteholder to elect not to be so prepaid), subject to the prepayment requirements of Section 2.2(a) and a price equal to 100% of the Trustee for the purpose of perfecting such security principal amount to be prepaid, plus interest under applicable law. The Depositor and the Trustee (accrued to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest date of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementprepayment."

Appears in 1 contract

Samples: Note Agreement (Oneida LTD)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrowers to obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent “Current Disposition”), and of all prior Dispositions after the Original Closing Date (including amounts which were set aside for reinvestment pursuant to the second paragraph of this Section 2.10(d) but were not in fact so reinvested within one year) as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $30,000,000 then, no later than five Business Days after the occurrence of the partiesCurrent Disposition, the Borrowers will deliver to the Administrative Agent (which shall promptly provide a copy thereof to the Lenders) a statement, certified by a Senior Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below) in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (e) of this Section 2.10. Notwithstanding the foregoing, the Borrowers shall not be required to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest make a prepayment pursuant to Section 9-305 of the applicable UCC; and this paragraph (d) notifications with respect to persons holding such property, and acknowledgments, receipts or confirmations Net Available Proceeds from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest any Disposition in the related Assetsevent that the Borrowers advise the Administrative Agent at the time the Net Available Proceeds from such Disposition are received that they intend to reinvest such Net Available Proceeds in replacement assets pursuant to an Acquisition permitted under Section 8.05(d)(v) hereof or otherwise as Capital Expenditures permitted under Section 8.12 hereof, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.so long as

Appears in 1 contract

Samples: Credit Agreement (Mediacom Communications Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in Obligors to obtain the event that, notwithstanding the intent consent of the partiesMajority Banks pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, such Assets are held no later than five Business Days prior to continue to be property the occurrence of any Disposition, the DepositorCompany, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 on behalf of the applicable UCC; (b) Obligor will deliver to the conveyance Banks a statement, certified by the Depositor provided for chief financial officer or treasurer of the Company, in the Pooling form and Servicing Agreement shall be deemed to be a grant by the Depositor detail satisfactory to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntaryAgent, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 amount of the applicable UCC; and (d) notifications to persons holding Net Available Proceeds of such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takeDisposition and, to the extent consistent such Net Available Proceeds (when taken together with the Pooling Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(c)) shall exceed $1,000,000, the Borrowers (jointly and Servicing Agreementseverally) shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in clause (e) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of such Disposition, or such lesser amount as is specified in a written notice from the Majority Banks (together with 100%, or such lesser amount as is specified in a written notice from the Majority Banks, of the Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(c)), such actions as may prepayment and reduction to be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest effected in each case in the related Assetsmanner and to the extent specified in clause (d) of this Section 2.10. Notwithstanding the forgoing, such security interest would the Company shall not be deemed required to prepay the Loans (and/or provide cover for the Letter of Credit Liabilities pursuant to Section 2.10(e) hereof), and the Commitments shall not be a perfected security interest subject to automatic reduction upon any sale of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementProperty, other than Mortgaged Property, pursuant to Section 9.05 hereof.

Appears in 1 contract

Samples: Credit Agreement (Forest Oil Corp)

Sale of Assets. It is The Company will not, nor will it permit any Subsidiary to, sell, lease, license, transfer, assign or otherwise dispose of any of its Property, whether in one or a series of transactions, other than inventory sold in the express intent ordinary course of business upon customary credit terms, sales of scrap or obsolete material or equipment which are not material in the aggregate; provided, however, that, this Section 6.19 will not prohibit any of the Depositor and the Trustee that the conveyance following so long as none of the Assets underlying following would require a Series prepayment under the Subordinated Debt, the Third Secured Term Loan Debt, the Fourth Secured Term Loan Debt or the Second Secured Debt and no Default or Unmatured Default exists or would be caused thereby, (a) transfers of assets, including without limitation Capital Stock, between Guarantors or between the Company and Guarantors or between Subsidiaries which are not Guarantors or from a Subsidiary which is not a Guarantor to a Guarantor or the Company, it being understood that for purposes of this clause (a) a Guarantor shall include any Subsidiary which becomes a Guarantor immediately after such transfer, (b) any Investment permitted by Section 6.20, (c) the disposition of Cash Equivalent Investments in the ordinary course of business, or (d) other sales agreed to by the Depositor to Required Lenders in their Permitted Discretion if the Trustee pursuant to proceeds thereof are deposited in the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is2006 Blocked Account; provided, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Howeverhowever, in the event that, notwithstanding the intent case of any of the partiesforegoing permitted sales, leases, licenses, transfers, assignments or other dispositions (an “Asset Sale”) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Sale unless (A) except for transfers under clause (a), (b) or (c) above, the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (and if such sale is of a material amount of assets, such Assets are held to continue to fair market value shall be property evidenced by a resolution of the Depositor, then Board of Directors set forth in an officer’s certificate delivered to the Agent) of the assets and (B) except for transfers under clause (a), (b) or (c) above, at least 80% of the Pooling consideration therefor received by the Company or such Subsidiary is in the form of cash or Cash Equivalent Investments; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet) of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and Servicing Agreement also (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received) shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and the Agent promptly shall obtain a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a first priority security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession non cash consideration for any Asset Sale by the Trustee Company or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementany Guarantor.

Appears in 1 contract

Samples: Credit Agreement (MSX International Inc)

Sale of Assets. It is If (A)(x) the express intent Net Available Proceeds of the Depositor and the Trustee that the conveyance any Disposition (other than in respect of the Assets underlying a Series by the Depositor to the Trustee GEO Care Inc. pursuant to the related Pooling GEO Care Purchase Agreement) received after the Restatement Effective Date exceed $2,500,000 and Servicing Agreement be construed are equal to or less than $50,000,000 and (y) either (I) the Pro Forma Total Leverage Ratio, calculated as a sale of the consummation of and after giving effect to such Disposition, exceeds 5.25:1.00 or (II) the Pro Forma Senior Secured Leverage Ratio, calculated as of the consummation of and after giving effect to such Disposition, exceeds 3.00:1.00, or (B) the Net Available Proceeds of any Disposition received after the Restatement Effective Date exceed $50,000,000, then, in each case, promptly upon the consummation of such Assets by Disposition (and in any event within 4 Business Days thereof), GEO or the Depositor Borrowers, as applicable, will prepay the Loans, and/or the unused Incremental Term Loan Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of such Disposition, such prepayment and/or reduction to be effected in each case in the manner and to the Trusteeextent specified in Section 2.10(b)(iii). It isNotwithstanding the foregoing, furtherGEO or the Borrowers, as applicable, shall not be required to make a prepayment and the intention unused Incremental Term Loan Commitments shall not be subject to automatic reduction pursuant to this Section 2.10(b)(ii) with respect to the Net Available Proceeds from any Disposition, if (x) no Default shall have occurred and be continuing on such date or during the Applicable Period (prior to the date the Net Available Proceeds are used or otherwise invested as provided in this sentence) and (y) such Net Available Proceeds are used for one or more acquisitions or otherwise reinvested in the Permitted Business of the Depositor or Borrowers and the Trustee Restricted Subsidiaries within the Applicable Period (as defined below) for such Disposition (it being understood that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also Net Available Proceeds shall be deemed to be a security agreement within used in the meaning of Article 9 same order in which the related Dispositions occurred); provided that any such Net Available Proceeds not so used on or before the last day of the Applicable Period for such Disposition shall be forthwith applied as provided above. For purposes hereof, “Applicable Period” means, with respect to any Disposition, the period starting on the day such Disposition is consummated and ending on the date falling 270 days thereafter, except that if GEO or the applicable UCC; Restricted Subsidiary agrees in a legally binding commitment to reinvest the Net Available Proceeds from such Disposition (b) pursuant to the conveyance by the Depositor provided for proviso in the Pooling immediately preceding sentence) in the construction and Servicing Agreement equipping of one or more Facilities on or before such 270th day, the Applicable Period for such Disposition shall be deemed extended automatically by 18 months. Prior to be a grant by or substantially concurrently with the Depositor consummation of any Disposition, GEO shall deliver to the Trustee Administrative Agent (for further distribution to the Lenders) a statement, certified by a Financial Officer of a security interest GEO, in all form and detail reasonably satisfactory to the Administrative Agent, of the Depositor's rightamount of the Net Available Proceeds of such Disposition (except that such statement shall not be required for any Disposition the Net Available Proceeds of which are less than or equal to $50,000,000); provided that, title and interest for the avoidance of doubt, such certified statement may be supplemented or modified in writing by such Financial Officer solely as to such amount of Net Available Proceeds if and to the Assets extent (and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary during such time as) a corresponding supplement or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper modification shall be deemed to be "possession delivered by the secured party" for purposes of perfecting the security interest such Financial Officer pursuant to Section 9-305 of the applicable UCC; and clause (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicableII) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (final proviso to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest definition of “Net Available Proceeds” set forth in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 1.01.

Appears in 1 contract

Samples: Credit Agreement (Geo Group Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 9.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event that, notwithstanding that the intent Net Available Proceeds of any Disposition of Property of the partiesCompany or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans under the Supplemental Credit Agreement) other than an Excluded Disposition (herein, the "CURRENT DISPOSITION"), and of all prior Dispositions of Property of the Company or any of its Subsidiaries (other than Property of a Supplemental Guarantor or acquired with the proceeds of Facility C Loans under the Supplemental Credit Agreement) as to which a prepayment has not yet been made under this Section 2.09(c), shall exceed $500,000 then, no later than 5 Business Days prior to the occurrence of the Current Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such Assets are held to continue prior Dispositions and the Company will prepay the Loans (or cause the Loans to be property prepaid) and the Facility A Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Depositor, then (a) Net Available Proceeds of the Pooling Current Disposition and Servicing Agreement also shall be deemed such prior Dispositions not theretofore used to prepay Facility B Loans such prepayment and reduction to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (f) below; PROVIDED that with respect to any Current Disposition that includes any Eligible Inventory or Eligible Receivables, the Company shall deliver to the holders Agent a statement of a Responsible Financial Officer of the Assets Company specifying the portion of Net Available Proceeds of the Current Disposition and of all prior Dispositions as to which a prepayment has not yet been made hereunder relating to such Inventory or Receivables and the Company shall prepay the Facility A Loans (and/or provide cover for Letter of Credit Liabilities as specified in accordance paragraph (h) below). In the case of all Dispositions of Property of a Supplemental Guarantor or acquired with the terms thereof and all proceeds of Facility C Loans under the conversionSupplemental Credit Agreement, voluntary the Company will make (or involuntary, cause to be made) prepayments of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility C Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Supplemental Credit Agreement.

Appears in 1 contract

Samples: Execution Copy (Suiza Foods Corp)

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Sale of Assets. It is Except in the express intent ordinary course of business (including the sale, lease, transfer or other disposition of any credit card receivable of the Depositor and Company or any 66 60 of its Subsidiaries), the Trustee that the conveyance Company will not, nor will it permit any of its Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its assets or sell, transfer or otherwise dispose of any of the Assets underlying Capital Stock of any of its Subsidiaries, provided that, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, no such disposition of assets or Capital Stock out of the ordinary course of business shall constitute a Series violation of this subsection 10.6 so long as (i) the aggregate fair market value of the assets or Capital Stock so disposed of during any Fiscal Year of the Company shall not exceed 10% of Consolidated Net Worth as at the end of the preceding Fiscal Year, or (ii) the net cash proceeds are used within 180 days after the receipt thereof to purchase assets to be utilized by the Depositor Company in any Related Line of Business and if not so used within such time period, such proceeds shall be applied to the Trustee pursuant prepayment of principal of any outstanding Term Loans in inverse order of maturity and thereafter, 50% of such proceeds shall, if Margin Level I Status then exists, be applied to the related Pooling and Servicing Agreement be construed as a sale mandatory reduction of such Assets by the Depositor Revolving Credit Commitments. Notwithstanding anything contained in this subsection 10.6 to the Trustee. It iscontrary, further, not neither the intention Company nor any of the Depositor or the Trustee that such conveyance be deemed a pledge its Subsidiaries shall dispose of such Assets by the Depositor to the Trustee to secure a debt or other obligation any of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's its right, title and or interest in any Collateral or any material Trademark, except for (i) licensing of Trademarks and sales of inventory in the ordinary course of business and (ii) sales, leases, transfers or other dispositions of Trademarks by the Company to any of its Subsidiaries which is a Guarantor or by any Subsidiary to any other Subsidiary which is a Guarantor or to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementCompany.

Appears in 1 contract

Samples: Credit Agreement (Polo Ralph Lauren Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrowers to obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions after the date hereof (including amounts which were set aside for reinvestment pursuant to the second paragraph of this Section 2.10(d) but were not in fact so reinvested within one year) as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $30,000,000 then, no later than five Business Days after the occurrence of the partiesCurrent Disposition, the Borrowers will deliver to the Administrative Agent (which shall promptly provide a copy thereof to the Lenders) a statement, certified by a Senior Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below) in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (e) of this Section 2.10. Notwithstanding the foregoing, the Borrowers shall not be required to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest make a prepayment pursuant to Section 9-305 of the applicable UCC; and this paragraph (d) notifications with respect to persons holding such property, and acknowledgments, receipts or confirmations Net Available Proceeds from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest any Disposition in the related Assetsevent that the Borrowers advise the Administrative Agent at the time the Net Credit Agreement Available Proceeds from such Disposition are received that they intend to reinvest such Net Available Proceeds in replacement assets pursuant to an Acquisition permitted under Section 8.05(d)(iv) hereof or otherwise as Capital Expenditures permitted under Section 8.12 hereof, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.so long as

Appears in 1 contract

Samples: Credit Agreement (Mediacom Communications Corp)

Sale of Assets. It is Except as permitted by Section 10.7, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a “Disposition”), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) Dispositions by a Restricted Subsidiary to the conveyance Company or another Wholly Owned Restricted Subsidiary or (c) Dispositions not otherwise permitted by clauses (a) or (b) of this Section 10.8, provided that (i) each such Disposition is for a consideration at least equal to the fair market value of the property subject thereto, (ii) the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.8(c) does not exceed 15% of Consolidated Net Assets as of the end of the immediately preceding fiscal year, (iii) the operations of such assets sold pursuant to this Section 10.8(c) generated less than 15% of the consolidated operating profit of the Company and its Restricted Subsidiaries for the immediately preceding fiscal year, and (iv) after giving effect to such Disposition no Default or Event of Default would exist. Notwithstanding the foregoing, 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 the foregoing limitation and computation contained in clause (c) of the preceding sentence to the extent that (i) each such Disposition is for a consideration at least equal to the fair market value of the property subject thereto, and (ii) the net proceeds from such Disposition are within 180 days of such Disposition (A) reinvested in productive assets by the Depositor provided for in Company or a Restricted Subsidiary or (B) applied to the Pooling and Servicing Agreement payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is pari passu with or senior to the Notes. Any prepayment of Notes pursuant to this Section 10.8 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Pledge Agreement (Lincare Holdings Inc)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Parent Guarantor will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a “Disposition”), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverSubsidiaries, in the event thatone or more transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Parent Guarantor to a Subsidiary or by a Subsidiary to the Parent Guarantor or another Subsidiary or (c) Dispositions not otherwise permitted by this Section 10.3, provided for that the aggregate net book value of all assets so disposed of (excluding accounts receivable transferred as part of a Permitted Receivables Transaction) in any fiscal year pursuant to this Section 10.3(c) does not exceed 10% of Consolidated Total Assets as of the end of the immediately preceding fiscal year. Notwithstanding the foregoing, the Parent Guarantor may, or may permit any Subsidiary to, make a Disposition and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in clause (c) of the preceding sentence to the extent that (x) such assets are leased back by the Parent Guarantor or any Subsidiary, as lessee, within 180 days of the original acquisition or construction thereof by the Parent Guarantor or such Subsidiary, or (y) the net proceeds from such Disposition are within 180 days of such Disposition (A) reinvested in productive assets by the Parent Guarantor or a Subsidiary consistent with Section 10.6 or (B) applied to the pro rata payment or prepayment of any outstanding Debt of the Parent Guarantor or any Subsidiary that is not subordinated to the Notes. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title offered and interest in prepaid as and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.provided below:

Appears in 1 contract

Samples: Note Purchase and Guaranty Agreement (Aptargroup Inc)

Sale of Assets. It is etc. Enter into or be a party to any merger or consolidation; sell, assign, transfer, convey or lease any interest in all or any substantial part of its property except in the express intent ordinary course of the Depositor and the Trustee that the conveyance Borrower1s business as now being conducted; purchase or otherwise acquire all or substantially all of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale assets of such Assets by the Depositor to the Trusteeany other person, or any shares of stock of; or similar interest in, any other person. It is, further, not the intention The consent of the Depositor Lender and MIDFA to any requested merger or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation consolidation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to Borrower with any other person shall not be property of the Depositor, then unreasonably withheld if (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 net worth of the applicable UCC; entity surviving such merger or consolidation (the "Surviving Entity") would be not less than the net worth of the Borrower immediately preceding such consolidation or merger, and (b) if the conveyance by Surviving Entity is not the Depositor provided for in Borrower, the Pooling Surviving Entity assumes the payment and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all performance of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest Obligations pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions written agreements as may be necessary satisfactory to ensure thatthe Lender, and MIDFA. MIDFA may further condition its consent to any consolidation or merger on the Surviving Entity agreeing that while any amounts remain outstanding under the Loan it will not (x) transfer its business operations then being conducted by the Borrower at the premises known as 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000 (the "Premises") out of the State of Maryland, or (y) materially reduce the number of employees at the Premises. Notwithstanding the foregoing, the consent of MIDFA to any matter described in this Section 6.01 shall not be required if the Pooling Surviving Entity provides additional collateral for the Obligations of a type, in an amount and Servicing Agreement were deemed pursuant to create a security interest written agreements which are in form and substance satisfactory to the related AssetsLender, such security interest would be deemed and the Lender consents to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term termination of the Pooling Insurance Agreement. The Lender and Servicing AgreementMIDFA further covenant and agree to use their best efforts in good faith to promptly respond to any request by the Borrower for a consent required under this Section 6.01.

Appears in 1 contract

Samples: Pledge Agreement (Osiris Therapeutics Inc)

Sale of Assets. It is the express intent Will not, and will not permit any Subsidiary to, sell, lease or transfer, or otherwise dispose of the Depositor and the Trustee that the conveyance all or a substantial part of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or its assets (other obligation of the Depositor. However, than products sold in the event thatordinary course of business), notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then except that (a) any Subsidiary may sell, lease, transfer, or otherwise dispose of any of its assets to the Pooling and Servicing Agreement also shall be deemed to be Borrower or a security agreement within the meaning of Article 9 of the applicable UCC; wholly–owned Subsidiary, (b) the conveyance by Borrower may dispose of its assets or the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee stock or assets of a security interest in all of the Depositor's right, title and interest in and Subsidiary if required to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other propertydo so by a final court order, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by foregoing limitation on the Trustee sale, lease, transfer or its agent other disposition of items assets shall not prohibit during any fiscal quarter, the sale of property that constitute instrumentsaccounts receivable in a Permitted Securitization Transaction or any other sale, moneyCREDIT AGREEMENT, negotiable documents Page 48 lease, transfer or chattel paper shall be deemed other disposition of assets unless the aggregate assets to be "possession by so sold, leased, transferred or otherwise disposed (including, without limitation, the secured party" accounts receivable sold in a Permitted Securitization Transaction), when combined with all other assets sold, leased, transferred or otherwise disposed (including, without limitation, the accounts receivable sold in a Permitted Securitization Transaction) during such fiscal quarter and the immediately preceding 3 fiscal quarters constituted more than 25% of Consolidated Total Assets at the end of the most recent fiscal year immediately preceding such fiscal quarter. As used herein, a “substantial part” of the assets of the Borrower or any Subsidiary shall mean an amount equal to 25% or more of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements are publically available immediately preceding the sale, lease, transfer, or other disposition in question (without giving effect to such sale, lease, transfer, or other disposition in question). In calculating the amount of the accounts receivable sold in any sale of account receivable, including, but not limited to a Permitted Securitization Transaction, for purposes of perfecting this Section 5.11 during any period of calculation, the security interest pursuant to Section 9-305 amount of the applicable UCC; and collections received during that period by the Receivable Entity (dwhich term is defined in the definition of the term “Permitted Securitization Transaction”) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, on the accounts receivable so sold shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementsubtracted therefrom.

Appears in 1 contract

Samples: Credit Agreement (Leggett & Platt Inc)

Sale of Assets. It is The Company will not, and will not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of (collectively a "Disposition") any assets (including capital stock of Subsidiaries), in one or a series of transactions (other than in the express intent ordinary course of business or as permitted by Section 7.7) to any Person, other than the Company or a Wholly- Owned Subsidiary, if for the 12 month period ending on and including the date of such Disposition, after giving effect to such Disposition, the aggregate net proceeds from all Dispositions during such twelve month period would exceed 15% of Consolidated Total Assets as of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale beginning of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then twelve month period unless either (ai) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in after giving effect thereto and to the Assets and all amounts payable contemporaneous repayment of any Consolidated Debt, the resulting ratio of Consolidated Income Available for Fixed Charges to Fixed Charges for each fiscal quarter ending during such twelve month period would be not less than 1.50 to 1.00 or (ii) the holders Company offers to prepay the Notes then outstanding as hereinafter provided. In the event the Company offers to prepay the Notes as herein provided the Company shall immediately give written notice to each holder of a Note of such offer, accompanied by a certificate of an authorized officer of the Assets Company setting forth the calculations described in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; clause (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicablei) of the Trustee preceding sentence. Such notice shall contain the written, irrevocable offer of the Company to prepay, on a date specified in such notice which shall be not less than 30 or more than 45 calendar days after the date of such Disposition, the entire principal amount of the Notes held by each holder at a price equal to 100% of the outstanding principal thereof, plus interest accrued thereon to the date of prepayment, plus the Make-Whole Amount, and shall state that notice of acceptance of the Company's offer to prepay under this Section 7.8 must be delivered to the Company not later than 10 calendar days prior to the date fixed for prepayment. Upon receipt by the purpose Company of perfecting such security notice from any holder, but subject to the following sentence, the aggregate principal amount and accrued interest under applicable lawand Make-Whole Amount of Notes held by such holder shall become due and payable on the day specified in the Company's notice. The Depositor Not earlier than 7 calendar days prior to the date fixed for prepayment, the Company shall give written notice to each holder of those holders, and the Trustee (principal amount of Notes held by each, who have given notices of acceptance of the Company's offer, and thereafter any holder may revoke its acceptance of the Company's offer, or accept such offer, by written notice to such effect delivered to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, Company not less than 3 calendar days prior to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementdate fixed for prepayment.

Appears in 1 contract

Samples: Danaher Corporation Note Agreement (Danaher Corp /De/)

Sale of Assets. It is the express intent The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively, a "DISPOSITION"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor Restricted Subsidiary to the Trustee of a security interest in all of the Depositor's rightCompany or another Restricted Subsidiary, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Dispositions permitted by the Trustee Section 10.8, or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications Dispositions not otherwise permitted by this Section 10.7, provided that the net cash proceeds from each such Disposition covered by this clause (d) (a "COVERED DISPOSITION") are offered by the Company to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) applied to the prepayment of the Trustee for Notes in the purpose of perfecting such security interest under applicable lawmanner hereafter provided. The Depositor and For each fiscal quarter commencing after September 30, 2000 in which the Trustee (Company makes any Covered Dispositions, the Company shall offer to apply an amount equal to the extent Pro Rata Percentage of the Trustee has been instructed net cash proceeds from all such Covered Dispositions in such fiscal quarter toward the prepayment of the Notes at a price equal to 100% of the principal amount of the Notes to be prepaid together with interest accrued to the date of prepayment, without payment of any Make-Whole Amount. For purposes of the foregoing, "NET CASH PROCEEDS" includes all cash and cash equivalents actually received by the Depositor Company or any Restricted Subsidiary in respect of a Covered Disposition during the Master Servicer) shall takefiscal quarter in question, after deduction for all out-of-pocket expenses incurred by the Company or such Restricted Subsidiary that are directly attributable to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.Covered

Appears in 1 contract

Samples: Note Purchase Agreement (Carriage Services Inc)

Sale of Assets. It is Except as permitted by Section 10.5, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "DISPOSITION"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.4, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.4(c) does 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 and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in clause (c) of the preceding sentence to the extent that (x) such assets are leased back by the Company or any Restricted Subsidiary, as lessee, within 180 days of the Disposition thereof, or (y) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Restricted Subsidiary or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.4 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Note Purchase Agreement (Belden Inc)

Sale of Assets. It is In the express intent event of any direct or indirect sale or other disposition of any of the Depositor and the Trustee that the conveyance assets (including lines of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It isbusiness, furtherproduct lines, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt divisions or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicablebusiness units) of the Trustee for Borrower or any Subsidiary (other than sales or dispositions referred to in clause (i)-(viii) of Section 8.2.7 [Dispositions of Assets or Subsidiaries]) (each, an “Asset Sale”) the purpose Net Proceeds of perfecting which in the aggregate with all prior Asset Sales made since the date of this Agreement (but only those Asset Sales the Net Proceeds of which were not applied as a prepayment as hereinafter provided in this Section 5.7.1) is greater than $10,000,000, the Borrower shall within five (5) Business Days following such security interest under applicable law. The Depositor and sale or other disposition make a mandatory prepayment of principal on the Trustee Loans equal to one hundred percent (100%) of the Net Proceeds of such sale or other disposition (but only to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takein excess of such $10,000,000), to the extent consistent together with the Pooling and Servicing Agreement, accrued interest on such actions as may be necessary to ensure principal amount; provided that, if the Pooling and Servicing Agreement were deemed Borrower or its Subsidiaries intend to create cause the Net Proceeds from such sale (or a security interest portion thereof specified in such certificate) to be applied within 180 days after receipt of such Net Proceeds to acquire assets to be used or useful in the related Assetsbusiness of the Borrower or its Subsidiaries, and no Event of Default or Potential Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds from such event (or the portion of such Net Proceeds intended by the Borrower or its Subsidiaries to be reinvested) except to the extent of any such Net Proceeds that have not been so applied by the end of such 180-day period, at which time a prepayment shall be required in an amount equal to the Net Proceeds that have not been so applied; provided, further, that to the extent any such Net Proceeds shall be received in respect of assets owned by a Loan Party, such security interest would Net Proceeds may be deemed to be reinvested only in assets owned by a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementLoan Party.

Appears in 1 contract

Samples: Credit Agreement (Vertex, Inc.)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the DepositorBorrowers to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, no later than five Business Days after each Recapture Date the Parent shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Parent in form and detail reasonably satisfactory to the Administrative Agent of the amount of Net Available Proceeds for the Recapture Period ending on such Recapture Date and, on the date five Business Days after such Recapture Date the Borrowers shall prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (i) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% (or, from and after the Trigger Date, 75%) of the Net Available Proceeds of Dispositions for such Recapture Period, such prepayment and reduction to be effected in each case in the manner, order and to the extent specified in paragraph (h) below. HoweverNotwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this paragraph (b) with respect to the Net Available Proceeds of any Disposition in the event that, notwithstanding that the intent of Borrowers advise the parties, Administrative Agent at the time the Net Available Proceeds from such Assets Disposition are held received that they intend to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for reinvest such Net Available Proceeds in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest replacement assets pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such propertya transaction permitted hereunder, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.so long as:

Appears in 1 contract

Samples: Credit Agreement (Commonwealth Aluminum Corp)

Sale of Assets. It is the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) Neither the Pooling and Servicing Agreement also Issuer nor any of its Subsidiaries (other than unconsolidated Subsidiaries) shall be deemed to be a security agreement within the meaning (A) (I) sell, lease, convey or otherwise dispose of Article 9 in any transaction, or group of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee transactions that are part of a security interest in common plan, all or substantially all of the Depositor's rightassets or capital stock of any Asset Segment (provided that the sale, title and interest in and to the Assets and lease, conveyance or other disposition of all amounts payable to the holders or substantially all of the Assets Issuer's assets shall not be subject to this Section 3.13 but shall be governed by the provisions of Section 8.1 hereof) or (II) issue or sell equity securities of any Asset Segment (each of the foregoing, an "Asset Sale") or (B) sell, lease, convey or otherwise dispose of any Business Segment, unless in accordance with each case, the terms thereof Issuer shall apply the Net Proceeds from such Asset Sale or such sale, lease, conveyance or other disposition of a Business Segment to one or more of the following in such combination as the Issuer may choose: (i) an investment in another asset or business in the same line of business as, or a line of business similar to that of, the line of business of the Issuer and its Subsidiaries and such investment occurs within 366 days of such Asset Sale or such sale, lease, conveyance or other disposition of a Business Segment, (ii) a Net Proceeds Offer (as defined below) expiring within 366 days of such Asset Sale or such sale, lease, conveyance or other disposition of a Business Segment or (iii) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness within 366 days of such Asset Sale or such sale, lease, conveyance or other disposition of a Business Segment; provided, however, if the net amount not invested pursuant to clause (i) above or applied pursuant to clause (iii) above is less than $15,000,000 the Issuer shall not be further obligated to offer to redeem Securities pursuant to clause (ii) above. Notwithstanding the foregoing, (i) the receipt of all proceeds of the conversion, voluntary or involuntary, insurance paid on account of the foregoing into cash, instruments, securities loss of or other property, including without limitation all amounts, other than investment earnings, from time damage to time held any Business Segment and awards of compensation for any such Business Segment taken by condemnation or invested eminent domain which result in Net Proceeds to the related Certificate Account Issuer and its Subsidiaries of $50 million or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; more (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed excluding proceeds to be "possession by the secured party" used for purposes replacement of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such propertyBusiness Segment, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent provided the Trustee has been instructed received notice from the Issuer, within 90 days of such receipt, of its intention to use such proceeds for such purpose) will be deemed an "Asset Sale" and (ii) Permitted Investments and sales, leases, conveyances or other dispositions of assets by the Depositor Issuer or the Master Servicer) shall take, any Subsidiary to the extent consistent with Issuer or any wholly owned Subsidiary of the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would Issuer will not be deemed to be an "Asset Sale" or a perfected security interest sale or other disposition of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementa Business Segment.

Appears in 1 contract

Samples: Advantica Restaurant Group Inc

Sale of Assets. It is The Parent will not, nor will it permit any Subsidiary to, sell, lease or otherwise dispose of any of its Property (including any disposition of Property as part of a sale and leaseback transaction); provided that nothing contained therein shall prohibit (i) sales of inventory in the express intent ordinary course of business; (ii) sales or dispositions of obsolete or worn out Property disposed of in the ordinary course of business; (iii) sales as part of sale and leaseback transactions provided that the fair value of all Property subject to such transactions consummated in any fiscal year of the Depositor Parent shall not exceed $1,000,000; (iv) transfers of assets of Subsidiaries to the Company in connection with the liquidation and/or dissolution of such Subsidiaries; (v) transfers of patents, trademarks, copyrights and other intellectual property from the Trustee Company to Linden Oaks Corporation, provided that from and after the conveyance first such transfer and continuously thereafter Linden Oaks Corporation remains a wholly owned Subsidiary of the Assets underlying Company and a Series Guarantor hereunder; and (vi) sales, leases and other dispositions of Property not otherwise permitted by this Section 7.13 aggregating not more than $2,500,000 in any fiscal year; provided, however, that there shall be excluded from such $2,500,000 limitation amounts reinvested in other productive assets within 120 days of the Depositor receipt of the funds in question if after giving effect thereto Net Capital Expenditures for the fiscal year in question will not be negative and proceeds of sales or dispositions which are used within 120 days of receipt to permanently retire Indebtedness of the Parent and its Subsidiaries (other than Indebtedness owing to the Trustee pursuant Parent or any Subsidiary and Subordinated Debt). Anything contained in this Agreement to the related Pooling and Servicing Agreement be construed as a sale of such Assets by contrary notwithstanding, the Depositor to Parent will not, nor will it permit the Trustee. It isCompany to, further, not without the intention consent of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverMajority Lenders, sell (or, in the event that, notwithstanding the intent case of the partiesCompany, such Assets are held to continue to be property issue) capital stock of the Depositor, then Company (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor other than to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementParent).

Appears in 1 contract

Samples: Assignment Agreement (Pro Fac Cooperative Inc)

Sale of Assets. It is the express intent The Borrower shall not, and shall not permit any of the Depositor and the Trustee that the conveyance its Subsidiaries to, sell (including for discount or otherwise), lease, transfer or otherwise dispose of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It isassets, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then except (a) sales of inventory sold in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance by the Depositor provided for sales or other dispositions of assets in the Pooling ordinary course of business in which the Net Cash Proceeds thereof are used within ninety (90) days of the date of disposition to purchase assets useful in the business of the Borrower and Servicing Agreement its Subsidiaries, provided that the aggregate amount of Net Cash Proceeds outstanding and pending reinvestment pursuant to this clause (b) shall not exceed $2,500,000 at any time outstanding, unless the Determining Lenders shall otherwise consent in writing, provided further that any such Net Cash Proceeds not reinvested within ninety (90) days after the date of disposition shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets applied in accordance with the terms thereof and all proceeds Section 2.5(b)(ii) of the conversionthis Agreement, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) sales of Cash and Cash Equivalents in the possession by the Trustee or its agent ordinary course of items of property that constitute instrumentsbusiness, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications sales and dispositions (i) from the Borrower or any Domestic Subsidiary to persons holding such propertythe Borrower or any other Domestic Subsidiary and (ii) from any Foreign Subsidiary to the Borrower or any of its Subsidiaries, (e) transfers resulting from any casualty or condemnation of property or assets so long as the Net Cash Proceeds thereof are applied in accordance with Section 2.5(b)(ii) of this Agreement, (f) the sale or discount of overdue accounts receivable in the ordinary course of business, in connection with the compromise or collection thereof, and acknowledgments(g) licenses or sublicenses of intellectual property and general intangibles and licenses, receipts leases or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) subleases of other property in each case in the ordinary course of business and which do not materially interfere with the business of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor Borrower and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementits Subsidiaries.

Appears in 1 contract

Samples: Limited Forbearance Agreement (LLS Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $15,000,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Officer of the Company, in form and detail reasonably satisfactory to the Administrative Agent, of the amount of the anticipated Net Available Proceeds of the Current Disposition and of all such prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(d) and will prepay, upon receipt of such Net Available Proceeds, Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (g) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions as to which a prepayment has not been made under this Section 2.10(d) in excess of $15,000,000, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (f) of this Section 2.10. Notwithstanding the foregoing, neither the Disposition of Receivables by the Company or any of its Subsidiaries to the holders of Receivables Company or to the Assets United Stationers Receivables Master Trust in accordance connection with the terms thereof and all proceeds Receivables Financing nor the Disposition for fair value of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper Part A Property shall be deemed to be a "possession by the secured partyDisposition" for purposes of perfecting the security interest pursuant preceding sentence. If, however, any Part B Property is disposed of within one year prior to Section 9-305 or after the Disposition of Part A Property located in the same geographical area, the Company shall, within one year of the applicable UCC; and last of such Dispositions, apply the Net Available Proceeds of such Dispositions to (di) notifications to persons holding such property, and acknowledgments, receipts the purchase or confirmations from persons holding such property, shall be deemed notifications to, construction of a replacement facility or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicableii) the prepayment of the Trustee Loans (and/or the provision of cover for the purpose Letter of perfecting such security interest under applicable law. The Depositor Credit Liabilities as specified in paragraph (g) below) and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions reduction of Commitments as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementprovided above.

Appears in 1 contract

Samples: Credit Agreement (United Stationers Supply Co)

Sale of Assets. It is Except as permitted by Section 10.4, the express intent Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of, including by way of the Depositor and the Trustee that the conveyance merger (collectively a "DISPOSITION"), any assets, including capital stock of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverRestricted Subsidiaries, in the event thatone or a series of transactions, notwithstanding the intent of the partiesto any Person, such Assets are held to continue to be property of the Depositor, then other than (a) Dispositions in the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning ordinary course of Article 9 of the applicable UCC; business, (b) the conveyance Dispositions by the Depositor Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another Restricted Subsidiary or (c) other Dispositions not otherwise permitted by this Section 10.3, including the sale of receivables pursuant to asset securitization transactions, provided for that the aggregate net book value of all assets so disposed of in any fiscal year pursuant to this Section 10.3(c) does 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 and the assets subject to such Disposition shall not be subject to or included in the Pooling foregoing limitation and Servicing Agreement computation contained in Section 10.3(c) of the preceding sentence to the extent that (i) such assets were acquired or constructed not more than 180 days prior to Closing and are leased back by the Company or any Restricted Subsidiary, as lessee, within 180 days of the acquisition or construction thereof, or (ii) the net proceeds from such Disposition are within one year of such Disposition (A) reinvested in productive assets by the Company or a Restricted Subsidiary or (B) applied to the payment or prepayment of any outstanding Indebtedness of the Company or any Restricted Subsidiary that is not subordinated to the Notes. Any prepayment of Notes pursuant to this Section 10.3 shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof Sections 8.2 and all proceeds of the conversion8.3, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (regard to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest minimum prepayment requirements of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 8.2.

Appears in 1 contract

Samples: Note Purchase Agreement (Donaldson Co Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the DepositorBorrower to obtain the consent of the Required Lenders to any Disposition not otherwise permitted hereunder, the Borrower agrees, on the date of any Disposition by any Credit Party (other than Dispositions permitted by Section 7.4(c)(ii) and Dispositions consisting of subleases of real property by the Credit Parties permitted by Section 7.4(b)), to prepay the Loans hereunder upon the date of such Disposition, in an aggregate amount equal to 100% of the amount of such Net Cash Payments from such Disposition received by any Credit Party on the date of such Disposition, such payment to be effected in each case and in the manner and to the extent specified in Section 2.5(c) below. HoweverNotwithstanding the forgoing, so long as no Event of Default has occurred and is continuing or otherwise arises as a result thereof, the Borrower shall not be required to make any prepayment of the Loans under this Section 2.5(b)(ii) with respect to (A) the first $250,000 of aggregate Net Cash Payments received by the Credit Parties from Dispositions permitted by Section 7.4 (other than Dispositions permitted by Section 7.4(c)(iii) and the sale of the New Hampshire Property on or prior to the Closing Date) during any fiscal year of the Credit Parties (but not to exceed $500,000 in the aggregate from and after the Effective Time) and (B) the Net Cash Payments received by the Credit Parties from the Dispositions permitted by Section 7.4(c)(iii) and the sale of the New Hampshire Property on or prior to the Closing Date, in the event that, notwithstanding the intent case of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, each of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; clauses (cA) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall takeB), to the extent consistent with that (x) 100% of such Net Cash Payments are utilized to replace the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if assets disposed of by the Pooling and Servicing Agreement were deemed to create a security interest Credit Parties in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term Disposition or for working capital purposes of the Pooling Credit Parties within 180 days of each such Disposition and Servicing Agreement(y) such Net Cash Payments would not constitute “Excess Proceeds” under and as defined in the Discount Note Indenture or the Senior Note Indenture.

Appears in 1 contract

Samples: Credit Agreement (Haights Cross Communications Inc)

Sale of Assets. It (i) The Borrower will not, nor will it permit any Restricted Subsidiary to Transfer any of its Property to any other Person, except (A) Ordinary Course Transfers; (B) Intergroup Transfers; and (C) any other Transfer that is the express intent not an Ordinary Course Transfer or an Intergroup Transfer if (x) such Transfer does not involve a Substantial Portion of the Depositor Property of the Borrower and its Restricted Subsidiaries, (y) such Transfer is in exchange for consideration with a Fair Market Value at least equal to that of the Property exchanged and is in the best interests of the Borrower (as determined in good faith by the Board of Directors of the Borrower or the Board of Directors of such Restricted Subsidiary, as applicable) and (z) immediately prior to and immediately after giving effect to such transaction no Default or Unmatured Default would exist. (ii) Notwithstanding the provisions of Section 6.13(i), the determination of whether a Transfer involves a Substantial Portion of the Property of the Borrower and the Trustee that Restricted Subsidiaries shall be made without taking into account the conveyance same proportion of the Assets underlying a Series by the Depositor book value attributable to the Trustee Property subject to such Transfer as shall be equal to the proportion of the Net Asset Sale Proceeds Amount (the "Designated Portion") to be applied either (x) to a prepayment of the Senior Notes pursuant to the related Pooling and Servicing Agreement be construed as terms thereof (a sale "Prepayment Transfer") or (y) within one hundred eighty (0) days of the consummation of such Assets by the Depositor Transfer, to any acquisition of assets similar to the Trustee. It is, further, not assets which were the intention of the Depositor or the Trustee that such conveyance be deemed a pledge subject of such Assets by the Depositor Transfer (a "Reinvested Transfer"), as specified in an Officer's Certificate delivered to the Trustee to secure a debt Agent and each Lender prior to, or other obligation contemporaneously with, the consummation of the Depositorsuch Transfer. However, in the event thatIf, notwithstanding the intent certificate referred to in the preceding sentence, the Borrower shall fail to apply the entire amount of the partiesDesignated Portion as specified in such certificate within the required period, the computation of whether such Transfer involved a Substantial Portion of the Property of the Borrower and the Restricted Subsidiaries shall be recomputed, as of the date of such Transfer, without taking into account the same proportion of the book value attributable to the Property subject to such Transfer as shall be equal to the proportion of the Net Asset Sale Proceeds Amount actually applied to either a Prepayment Transfer or a Reinvested Transfer within such period. If, upon the recomputation provided for in the preceding sentence, such Assets are held to continue to be property Transfer involved a Substantial Portion of the DepositorProperty of the Borrower and the Restricted Subsidiaries, then (a) the Pooling and Servicing Agreement also an Unmatured Default shall be deemed to be a security agreement within the meaning of Article 9 have existed as of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee expiration of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable lawperiod. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement6.14.

Appears in 1 contract

Samples: Credit Agreement (Seitel Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans or Facility D Loans hereunder other than an Excluded Disposition (herein, notwithstanding the intent "CURRENT DISPOSITION"), and of all prior Dispositions of Property of any Supplemental Guarantor or Property acquired with the proceeds of Facility C Loans or Facility D Loans hereunder as to which a prepayment has not yet been made under this Section 2.09(b), shall exceed $1,000,000 then, no later than 5 Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Financial Officer of the Company, in form and detail satisfactory to the Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and the Company will prepay the Facility C Loans or Facility D Loans (or cause the Facility C Loans or Facility D Loans to be prepaid), in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets extent specified in paragraph (e) below. In the event that such Net Available Proceeds exceed the outstanding amount of the Facility C Loans and all amounts payable Facility D Loans, such excess shall be applied to the holders prepayment of the Assets Facility B Loans in accordance with the terms thereof and all proceeds of the conversionExisting Credit Agreement. In the case of all Dispositions of Property other than those referred to in this paragraph (b), voluntary the Company will make (or involuntary, cause to be made) prepayments of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in Facility A Loans and the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession Facility B Loans as required by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Existing Credit Agreement.

Appears in 1 contract

Samples: Execution Copy (Suiza Foods Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverCompany to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "CURRENT DISPOSITION"), and of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $15,000,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Company will deliver to the Lenders a statement, certified by a Responsible Officer of the Company, in form and detail reasonably CREDIT AGREEMENT satisfactory to the Administrative Agent, of the amount of the anticipated Net Available Proceeds of the Current Disposition and of all such prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(d) and will prepay, upon receipt of such Net Available Proceeds, Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (g) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions as to which a prepayment has not been made under this Section 2.10(d) in excess of $15,000,000, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (f) of this Section 2.10. Notwithstanding the foregoing, neither the Disposition of Receivables by the Company or any of its Subsidiaries to the holders of Receivables Company or to the Assets United Stationers Receivables Master Trust in accordance connection with the terms thereof and all proceeds Receivables Financing nor the Disposition for fair value of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper Part A Property shall be deemed to be a "possession by the secured partyDisposition" for purposes of perfecting the security interest pursuant preceding sentence. If, however, any Part B Property is disposed of within one year prior to Section 9-305 or after the Disposition of Part A Property located in the same geographical area, the Company shall, within one year of the applicable UCC; and last of such Dispositions, apply the Net Available Proceeds of such Dispositions to (di) notifications to persons holding such property, and acknowledgments, receipts the purchase or confirmations from persons holding such property, shall be deemed notifications to, construction of a replacement facility or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicableii) the prepayment of the Trustee Loans (and/or the provision of cover for the purpose Letter of perfecting such security interest under applicable law. The Depositor Credit Liabilities as specified in paragraph (g) below) and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions reduction of Commitments as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementprovided above.

Appears in 1 contract

Samples: Credit Agreement (United Stationers Supply Co)

Sale of Assets. It is the express intent Itself, or allow any of its Subsidiaries to sell, lease, assign, transfer or otherwise dispose of any assets of the Depositor Company and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It isits Subsidiaries (other than obsolete or worn out property), further, not the intention of the Depositor whether now owned or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amountshereafter acquired, other than investment earnings, from time to time held or invested in the related Certificate Account ordinary course of business as presently conducted and at fair market value (it being expressly agreed and understood that the sale or Distribution Accountother disposition of Mortgage Loans with or without servicing released and the sale or other disposition of servicing rights are in the ordinary course of business); provided, however, that in no event shall the Company or any of its Subsidiaries enter into any sale and leaseback transaction involving any of its assets without the prior written consent of the Majority Lenders; provided further, that the Company may sell, lease, assign, transfer or otherwise dispose of any of its assets to a Subsidiary of the Company (which, for the purpose of this proviso shall include any limited partnership the general and limited partners of which are Subsidiaries of the Company) so long as: (1) all classes of stock of, or partnership interests in, such Subsidiary are owned, directly or indirectly, by the Company, and such Subsidiary incurs no obligations for third party indebtedness (other than Indebtedness secured by Liens permitted by Paragraph 10(a) above and obligations to employees and vendors as are necessary or desirable in the normal conduct of the business of servicing 1-4 unit single family mortgage loans and in managing an office building owned by such Subsidiary), (2) any such unpaid obligations as are described in subparagraph (1) above (excluding Indebtedness secured by Liens permitted by Paragraph 10(a) above and payroll and benefits obligations to employees) shall not exceed at any time $50,000,000.00 in the aggregate, and (3) if as a result of such transfer of assets such Subsidiary becomes a Subsidiary Guarantor, such Subsidiary executes the documents, instruments and agreements required pursuant to Paragraph 6(a)(2) above; and, provided further, that the Company and its Subsidiaries may sell, lease, assign, transfer or otherwise dispose of any Mortgage Loans and Mortgage-Backed Securities to Affiliates provided that the net cash proceeds of such transactions actually received by the Company immediately upon the consummation thereof (and after giving effect to any requirement that the Company deposit funds as collateral security or other form of credit support with respect to such transaction, whether from such net cash proceeds or out of other funds) is not less than one hundred percent (100%) of the fair market value of the subject assets or, if less, that the Parent concurrently contributes equity in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (cash to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest Company in the related Assets, full amount of such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementdeficiency.

Appears in 1 contract

Samples: Credit Agreement (Countrywide Financial Corp)

Sale of Assets. It is If (A)(x) the express intent Net Available Proceeds of the Depositor and the Trustee that the conveyance any Disposition (other than in respect of the Assets underlying a Series by the Depositor to the Trustee GEO Care Inc. pursuant to the related Pooling GEO Care Purchase Agreement) received after the First Restatement Effective Date exceed $2,500,000 and Servicing Agreement be construed are equal to or less than $50,000,000 and (y) either (I) the Pro Forma Total Leverage Ratio, calculated as a sale of the consummation of and after giving effect to such Disposition, exceeds 5.25:1.00 or (II) the Pro Forma Senior Secured Leverage Ratio, calculated as of the consummation of and after giving effect to such Disposition, exceeds 3.00:1.00, or (B) the Net Available Proceeds of any Disposition received after the First Restatement Effective Date exceed $50,000,000, then, in each case, promptly upon the consummation of such Assets by Disposition (and in any event within 4 Business Days thereof), GEO or the Depositor Borrowers, as applicable, will prepay the Loans, and/or the unused Incremental Term Loan Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of such Disposition, such prepayment and/or reduction to be effected in each case in the manner and to the Trusteeextent specified in Section 2.10(b)(iii). It isNotwithstanding the foregoing, furtherGEO or the Borrowers, as applicable, shall not be required to make a prepayment and the intention unused Incremental Term Loan Commitments shall not be subject to automatic reduction pursuant to this Section 2.10(b)(ii) with respect to the Net Available Proceeds from any Disposition, if (x) no Default shall have occurred and be continuing on such date or during the Applicable Period (prior to the date the Net Available Proceeds are used or otherwise invested as provided in this sentence) and (y) such Net Available Proceeds are used for one or more acquisitions or otherwise reinvested in the Permitted Business of the Depositor or Borrowers and the Trustee Restricted Subsidiaries within the Applicable Period (as defined below) for such Disposition (it being understood that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also Net Available Proceeds shall be deemed to be a security agreement within used in the meaning of Article 9 same order in which the related Dispositions occurred); provided that any such Net Available Proceeds not so used on or before the last day of the Applicable Period for such Disposition shall be forthwith applied as provided above. For purposes hereof, “Applicable Period” means, with respect to any Disposition, the period starting on the day such Disposition is consummated and ending on the date falling 270 days thereafter, except that if GEO or the applicable UCC; Restricted Subsidiary agrees in a legally binding commitment to reinvest the Net Available Proceeds from such Disposition (b) pursuant to the conveyance by the Depositor provided for proviso in the Pooling immediately preceding sentence) in the construction and Servicing Agreement equipping of one or more Facilities on or before such 270th day, the Applicable Period for such Disposition shall be deemed extended automatically by 18 months. Prior to be a grant by or substantially concurrently with the Depositor consummation of any Disposition, GEO shall deliver to the Trustee Administrative Agent (for further distribution to the Lenders) a statement, certified by a Financial Officer of a security interest GEO, in all form and detail reasonably satisfactory to the Administrative Agent, of the Depositor's rightamount of the Net Available Proceeds of such Disposition (except that such statement shall not be required for any Disposition the Net Available Proceeds of which are less than or equal to $50,000,000); provided that, title and interest for the avoidance of doubt, such certified statement may be supplemented or modified in writing by such Financial Officer solely as to such amount of Net Available Proceeds if and to the Assets extent (and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary during such time as) a corresponding supplement or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper modification shall be deemed to be "possession delivered by the secured party" for purposes of perfecting the security interest such Financial Officer pursuant to Section 9-305 of the applicable UCC; and clause (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicableII) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (final proviso to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest definition of “Net Available Proceeds” set forth in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementSection 1.01.

Appears in 1 contract

Samples: Credit Agreement (Geo Group Inc)

Sale of Assets. It is Sell, lease, assign, transfer or otherwise dispose of value in the express intent Company or any Subsidiary to any Person (other than the Company or a Subsidiary) of any assets of the Depositor Company or any Subsidiary (an "Asset Sale") (it being understood that an Asset Sale shall include (A) the sale and/or issuance of stock of any Subsidiary to Persons other than the Company or any wholly-owned Subsidiary and (B) any dilution of ownership arising from a merger or consolidation of Subsidiaries as permitted by paragraph 6A(3)(ii)), other than in the Trustee that ordinary course of business, unless the conveyance Net Cash Proceeds of all such assets sold, leased or otherwise disposed of outside of the Assets underlying a Series by ordinary course of business during the Depositor most recent 36-month rolling period when added together, without duplication, with any assets then proposed to be sold outside of the ordinary course of business, do not exceed $10,000,000. Excluded from the foregoing limitation are the disposition of assets the proceeds of which are, within 180 days of such disposition, either (i) reinvested in property or assets for use in the existing business of the Company and its Subsidiaries or paid to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue Collateral Agent to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets distributed in accordance with the terms thereof Intercreditor Agreement, or (ii) applied on a pro rata basis to prepay Senior Funded Debt, including, without limitation, the Notes pursuant to paragraph 4B hereof, including the Make-Whole Amount provided for in said paragraph 4B. Notwithstanding the foregoing, TruServ Canada Cooperative Inc. may issue and all proceeds sell shares of its stock in the ordinary course of business consistent with its practices as of April 13,1992. Notwithstanding the foregoing, an Asset Sale shall not include (i) the sale, lease, assignment, transfer or other disposition of value (each a "DISPOSITION") of inventory in the ordinary course of business, (ii) the Disposition of inventory or receivables to a Guarantor or to the Company, (iii) leases or subleases entered into in the ordinary course of business, (iv) the licensing of intellectual property by the Company or any Subsidiary in the ordinary course of business (so long as such licensing does not prevent the Company or such Subsidiary from using intellectual property material to the business of the conversionCompany or such Subsidiary) , voluntary (v) any sublease of, or involuntaryassignment by the Company of its interest as lessee in, properties sold pursuant to a Designated Sale-Leaseback Transaction provided that any such sublease or assignment shall be on an arm's length basis, reasonable and normal commercial terms, and no less frequent than quarterly payment of rent or (vi) the foregoing into cash, instruments, securities or Disposition of other property, including without limitation all amounts, other than investment earnings, from time to time held or invested assets having a value not exceeding $250,000 in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested aggregate in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementfiscal year.

Appears in 1 contract

Samples: Note Purchase Agreement (Truserv Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the DepositorObligors to obtain the consent of the Majority Lenders pursuant to Section 12.04 hereof to any Disposition not otherwise permitted hereunder, no later than five Business Days prior to the occurrence of any such Disposition, PGI will deliver to the Lenders a statement, certified by its chief financial officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of such Disposition and, to the extent such Net Available Proceeds (when taken together with the Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this paragraph (c)) shall exceed U.S. $10,000,000, PGI shall, and shall cause the other Borrowers to, prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Credit Agreement ---------------- -50- Proceeds of such Disposition (together with 100% of the Net Available Proceeds of all prior Dispositions as to which a prepayment has not yet been made under this paragraph (c)), such prepayment and reduction to be effected in each case in the manner and to the extent specified in paragraph (e) below. HoweverNotwithstanding the foregoing, PGI (and the other Borrowers) shall not be required to make a prepayment pursuant to this paragraph (c) with respect to the Net Available Proceeds from any Disposition in the event that, notwithstanding that PGI advises the intent Administrative Agent at the time the Net Available Proceeds from such Disposition are received that PGI or one or more of its Subsidiaries intends to reinvest such Net Available Proceeds into replacement assets (and for these purposes the parties, such Assets are held to continue to be property payment of the Depositor, then (a) the Pooling and Servicing Agreement also Reserved Amounts arising in connection with any Disposition shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for reinvestment in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's rightreplacement assets), title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.so long as:

Appears in 1 contract

Samples: Credit Agreement (Fabrene Group Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower or any Canadian Borrower (as the case may be) to obtain the consent of the Required Lenders to any Disposition not otherwise permitted hereunder, the Borrower agrees, on the date of any Disposition by the Borrower or any of its Subsidiaries (other than Dispositions permitted under (A) Section 8.4(b)(v) of assets not comprising the Term Loan Borrowing Base or Canadian Borrowing Base to the extent that the aggregate Net Cash Payments received therefrom do not exceed $500,000 and (B) Section 8.4(b)(vii)), to prepay the Loans hereunder (and provide cash collateral for Total LC Exposure as specified in subsection 2.4(h)), upon the date of such Disposition (except as provided below), in the event that, notwithstanding the intent an aggregate amount equal to 100% of the partiesamount of such Net Cash Payments from such Disposition received by the Borrower or any of its Subsidiaries upon the date of such Disposition (except as provided below), and such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in subsection 2.8(c) below, PROVIDED THAT, the Borrowers shall not be required to prepay the holders of the Assets in accordance Loans with the terms thereof and all proceeds Net Cash Payments of Dispositions of Specified Assets permitted under Section 8.4(b)(vi) so long as the conversionNet Cash Payments from such Dispositions are used for a Permitted Asset Sale Prepayment, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (PROVIDED FURTHER THAT to the extent that the Trustee has been instructed by Net Cash Payments from such Dispositions are not applied immediately to prepay the Depositor Senior Notes or the Master Servicer) shall takeSenior Subordinated Notes, to as the extent consistent with the Pooling and Servicing Agreementcase may be, such actions as may be necessary to ensure thatNet Cash Payments shall, if at the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term time of the Pooling and Servicing AgreementDisposition, be applied to prepay the Revolving Loans.

Appears in 1 contract

Samples: Credit and Security Agreement (Audubon West Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrowers -------------- to obtain the consent of the Majority Lenders pursuant to Section 8.05 hereof to any Disposition not otherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and ------------------- of all prior Dispositions after the date hereof as to which a prepayment has not yet been made under this Section 2.10(d), shall exceed $20,000,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Borrowers will deliver to the Lenders a statement, certified by a Senior Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans (and/or provide cover for Letter of Credit Liabilities as specified in paragraph (f) below), and the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment and reduction to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (e) of this Section 2.10. Notwithstanding the foregoing, the Borrowers shall not be required to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest make a prepayment pursuant to Section 9-305 of the applicable UCC; and this paragraph (d) notifications with respect to persons holding such property, and acknowledgments, receipts or confirmations Net Available Proceeds from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest any Disposition in the related Assets, event that the Borrowers advise the Administrative Agent at the time the Net Available Proceeds from such security interest would be deemed Disposition are received that they intend to be a perfected security interest of first priority reinvest such Net Available Proceeds in replacement assets pursuant to an Acquisition permitted under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.Section 8.05(d)(v) hereof so long as

Appears in 1 contract

Samples: Credit Agreement (Mediacom Broadband Corp)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the DepositorObligors to obtain the AMENDMENT NO. However, in the event that, notwithstanding the intent 2 consent of the partiesCombined Majority Lenders pursuant to Section 9.05 hereof to any Disposition not otherwise permitted hereunder, such Assets are held no later than five Business Days prior to continue to be property the occurrence of any Disposition, the DepositorCompany, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 on behalf of the applicable UCC; (b) Obligor will deliver to the conveyance Lender Group a statement, certified by the Depositor provided for chief financial officer or treasurer of the Company, in the Pooling form and Servicing Agreement shall be deemed to be a grant by the Depositor detail satisfactory to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntaryAgent, of the foregoing into cashamount of the Net Available Proceeds of such Disposition and, instrumentsif the Net Available Proceeds of such Disposition together with the aggregate of all other Dispositions during the current Determination Period is in excess of $5,000,000, securities the Combined Majority Lenders, based on their review of the statement referred to in this Section 2.10(c) may, in their sole discretion, reduce the Borrowing Base in an aggregate amount not in excess of 100% of the Net Available Proceeds of such Disposition, or other propertysuch lesser amount as is specified in a written notice from the Combined Majority Lenders. If a Borrowing Base Deficiency results from such reduction, including without limitation all amountsthen the Company shall, notwithstanding Section 2.10(a) to the contrary, immediately prepay the Loans (and/or provide cover for the Letter of Credit Liabilities) with the Net Available Proceeds to cure such deficiency. Notwithstanding the foregoing, the Company shall not be required to prepay the Loans (and/or provide cover for the Letter of Credit Liabilities pursuant to Section 2.10(e) hereof), and the Borrowing Base shall not be subject to automatic reduction upon any sale of Property, other than investment earningsany Hydrocarbon Property, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC9.05 hereof."; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.and

Appears in 1 contract

Samples: Canadian Forest Oil LTD

Sale of Assets. It is Without limiting the express intent obligation of CCPR, or any of its Subsidiaries to obtain the consent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee Required Lenders pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor Section 7.03 to the Trustee. It is, further, any Disposition not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Howeverotherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions as to which a prepayment has not yet been made under this paragraph, shall exceed $500,000 then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Borrower will deliver to the Lenders a statement, certified by a Financial Officer of the Borrower, in form and substance satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans, and/or the Commitments shall be subject to automatic reduction, in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment and/or reduction to be property effected in each case in the manner and to the extent specified in clause (vii) of this paragraph. Notwithstanding the Depositorforegoing, then the Borrower shall not be required to make a prepayment pursuant to this clause (aiii) with respect to the Pooling Net Available Proceeds from any Disposition (A) in the event that the Borrower advises the Administrative Agent at the time the Net Available Proceeds from such Disposition are received that it intends to reinvest such Net Available Proceeds into replacement assets (and Servicing Agreement also for these purposes the payment of Reserved Amounts arising in connection with any Disposition shall be deemed to be a security agreement within reinvestment in replacement assets), so long as (i) such Net Available Proceeds are held by the meaning Administrative Agent in the Collateral Account under and as defined in the Security Agreement pending such reinvestment (and in that connection, the Administrative Agent need not release such Net Available Proceeds except upon presentation of Article 9 evidence satisfactory to it that such Net Available Proceeds are to be so reinvested in compliance with the provisions of the applicable UCC; this Agreement), (bii) the conveyance by the Depositor provided for Net Available Proceeds from any Disposition are in fact so reinvested within six months of such Disposition (it being understood that, in the Pooling and Servicing Agreement event said Collateral Account shall hold Net Available Proceeds from more than one Disposition, such Net Available Proceeds shall be deemed to be a grant released in the same order in which such Dispositions occurred and any such Net Available Proceeds so held for more than six months shall be forthwith applied to the prepayment of Loans and reductions of Commitments as provided above) and (iii) the aggregate amount of Net Available Proceeds (together with investment earnings thereon) so held at any time by the Depositor Administrative Agent pending reinvestment as contemplated by this sentence shall not exceed $5,000,000, or (B) made pursuant to the Trustee of a security interest in all Section 7.03(b)(i)(C). As contemplated by Section 4.01 of the Depositor's rightSecurity Agreement, title and interest nothing in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; this clause (ciii) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by obligate the secured party" Administrative Agent to release any of such proceeds from said Collateral Account to the Borrower for purposes of perfecting reinvestment as aforesaid upon the security interest pursuant to Section 9-305 occurrence and during the continuance of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) any Event of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing AgreementDefault.

Appears in 1 contract

Samples: Credit Agreement (CCPR Services Inc)

Sale of Assets. It is Without limiting the express intent obligation of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee any Obligor pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor Section 9.05 hereof to the Trustee. It is, further, any Disposition not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. Howeverotherwise permitted hereunder, in the event thatthat the Net Available Proceeds of any Disposition (herein, notwithstanding the intent "Current Disposition"), and of all prior Dispositions as to which a prepayment has not yet been made under this Section 2.10(e), shall exceed $2,000,000 (excluding for all purposes of this Section 2.10(e), any Disposition the Net Available Proceeds of which is less than $250,000) then, no later than five Business Days prior to the occurrence of the partiesCurrent Disposition, the Borrowers will deliver to the Lenders a statement, certified by a Senior Officer, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will prepay the Loans in an aggregate amount equal to 100% of the Net Available Proceeds of the Current Disposition and such prior Dispositions, such Assets are held to continue prepayment to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for effected in each case in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in manner and to the Assets and all amounts payable extent specified in paragraph (g) of this Section 2.10. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this paragraph (e) with respect to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, Net Available Proceeds from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (Disposition to the extent that the Trustee has been instructed by Borrowers advise the Depositor Administrative Agent at the time they deliver the statement referred to above in this paragraph (e) that (i) they intend to use such Net Available Proceeds in connection with Capital Expenditures permitted under Section 9.12 hereof or the Master Servicer(ii) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assetscase of any Disposition, the amount of such security interest would be deemed Net Available Proceeds constitute Deductible Reserves with respect to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.Disposition, so long as:

Appears in 1 contract

Samples: Credit Agreement (Tanner Chemicals Inc)

Sale of Assets. It is the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's ’s right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Residential Resources Inc)

Sale of Assets. It is Will not, and will not permit any Subsidiary to sell, lease or transfer, or otherwise dispose of all or a substantial part of its assets (other than products sold in the express intent ordinary course of business), except that (i) any Subsidiary may sell, lease, transfer, or otherwise dispose of any of its assets to the Company or a wholly-owned Subsidiary, (ii) the Company may dispose of its assets or the stock or assets of a Subsidiary if required to do so by a final court order, and (iii) the foregoing limitation on the sale, lease, transfer or other disposition of assets shall not prohibit during any fiscal quarter, a sale, lease, transfer or other disposition of assets unless the aggregate assets to be so sold, leased, transferred or otherwise disposed, when combined with all other assets sold, leased, transferred or otherwise disposed, during such fiscal quarter and the immediately preceding 3 fiscal quarters, constituted more than 15% of Consolidated Total Assets at the end of the Depositor and the Trustee that the conveyance most recent fiscal year immediately preceding such fiscal quarter. As used herein, a “substantial part” of the assets of the Company or any Subsidiary shall mean an amount equal to 15% or more of Consolidated Total Assets underlying a Series as of the fiscal year-end immediately preceding the sale, lease, transfer, or other disposition in question (without giving effect to such sale, lease, transfer, or other disposition in question). If the Company requests Bank to consent to any merger, consolidation or disposal of assets not permitted by this Section 7.11 and if Bank does not give such consent, then notwithstanding any other provisions hereof, the Company, at its option, may prepay all (but not less than all) Indebtedness then due under the Notes without any prepayment penalty, premium or other charge imposed for prepayment, except if any prepayment is made prior to the end of any applicable Eurodollar or CD Interest Period, the Company shall reimburse the Bank on demand for any loss incurred or to be incurred by the Depositor to Bank in the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention reemployment of the Depositor or the Trustee that funds released by such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that, notwithstanding the intent of the parties, such Assets are held to continue to be property of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementprepayment.

Appears in 1 contract

Samples: Revolving Credit Agreement (Leggett & Platt Inc)

Sale of Assets. It is Without limiting the express intent of the Depositor and the Trustee that the conveyance of the Assets underlying a Series by the Depositor to the Trustee pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention of the Depositor or the Trustee that such conveyance be deemed a pledge of such Assets by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. HoweverBorrower to obtain the consent of the Required Lenders pursuant to Section 7.05 to any Disposition not otherwise permitted hereunder, (x) with respect to any Disposition made on or prior to September 30, 2002, no later than five Business Days prior to the consummation of such Disposition, the Borrower will deliver to the Lenders a statement, certified by a Financial Officer of the Borrower, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of such Disposition and will, on or prior to the date which is 3 days after the consummation of such Disposition, prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.04(k)), and/or the Commitments shall be subject to automatic reduction, in an aggregate amount equal to the Net Available Proceeds of such Disposition and (y) with respect to any Disposition made after September 30, 2002, in the event that the Net Available Proceeds of any Disposition (the "Current Disposition"), and of all prior Dispositions (other than sales of assets in the ordinary course of business or in connection with any Receivables Financing) as to which a prepayment has not yet been made under this paragraph, shall exceed $100,000,000 in the aggregate for any fiscal year (such excess amount for any fiscal year, the "Excess Disposition Proceeds"), then, no later than five Business Days prior to the consummation of the Current Disposition, the Borrower will deliver to the Lenders a statement, certified by a Financial Officer of the Borrower, in form and detail satisfactory to the Administrative Agent, of the amount of the Net Available Proceeds of the Current Disposition and of all such prior Dispositions and will, on or prior to the date which is 270 days after the consummation of the Current Disposition, prepay the Loans (and/or provide cover for LC Exposure as specified in Section 2.04(k)), and/or the Commitments shall be subject to automatic reduction, in an aggregate amount equal to the Excess Disposition Proceeds, in each case, such prepayment and/or reduction to be effected in each case in the manner and to the extent specified in clause (vi) of this paragraph, provided that, notwithstanding the intent of foregoing, the partiesBorrower shall not be required to make a prepayment under this clause (ii) with respect to any Disposition (A) made on or prior to September 30, such Assets are held to continue to be property of the Depositor2002, then which is permitted under clause (ak) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; or (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicablei) of the Trustee for the purpose of perfecting such security interest Section 7.05 or (B) made after September 30, 2002 (I) which is permitted under applicable law. The Depositor and the Trustee Section 7.05 or (II) to the extent the Trustee has been instructed by the Depositor that on or the Master Servicer) shall take, prior to the extent consistent with date within 180 days following receipt of the Pooling Net Available Proceeds of the Current Disposition the Borrower shall have advised the Administrative Agent that it has entered into a legally binding commitment to make any Acquisition permitted under Section 7.04(f) and Servicing Agreementthat it intends to use all or portion of the Net Available Proceeds of the Current Disposition to finance such Acquisitions and that, on or prior to the date which is 360 days after the Current Disposition, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementproceeds are actually so invested.

Appears in 1 contract

Samples: Sinclair Broadcast Group Inc

Sale of Assets. It is Midwest shall not sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable and capital stock of or other ownership interests in Subsidiaries) to any Person (each such event, an "ASSET DISPOSITION"), unless the express intent aggregate net book value of all such assets, together with the Depositor and net book value of all other assets sold, transferred, leased, contributed or conveyed by Midwest pursuant to this SECTION 6.2 since the Trustee Closing Date, does not exceed the Permitted Percentage; PROVIDED, HOWEVER, that the conveyance of the Assets underlying a Series by the Depositor notwithstanding anything to the Trustee contrary contained herein, Midwest may (i) sell or otherwise dispose of assets as and to the extent necessary to comply with Requirements of Law; PROVIDED, HOWEVER, that if after giving effect to any Asset Dispositions required to be made under this CLAUSE (i) the aggregate net book value of sales made under this SECTION 6.2 would exceed the Permitted Percentage, Midwest shall make a prepayment of all Net Cash Proceeds therefrom pursuant to the related Pooling and Servicing Agreement be construed as a sale of such Assets by the Depositor to the Trustee. It is, further, not the intention terms of the Depositor Holdings Credit Agreement, (ii) sell or otherwise dispose of Cash Equivalent Investments, (iii) enter into the Trustee that such conveyance be deemed a pledge of such Assets by Facility Site Lease and the Depositor Other Facility Site Leases and (iv) transfer certain railcars or rights to the Trustee to secure a debt or other obligation railcars as part of the Depositor. HoweverTransco Transaction; PROVIDED, FURTHER, that any Asset Disposition pursuant to this proviso shall not be included in the event that, notwithstanding the intent calculation of the parties, such Assets are held to continue to be property aggregate net book value of the Depositor, then (a) the Pooling and Servicing Agreement also shall be deemed to be a security agreement within the meaning of Article 9 of the applicable UCC; (b) the conveyance by the Depositor provided for in the Pooling and Servicing Agreement shall be deemed to be a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right, title and interest in and to the Assets and all amounts payable to the holders of the Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts, other than investment earnings, from time to time held or invested in the related Certificate Account or Distribution Account, whether in the form of cash, instruments, securities or other property, and including without limitation all amounts from time to time held or invested in any related Reserve Fund; (c) the possession by the Trustee or its agent of items of property that constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest assets sold pursuant to Section 9-305 of the applicable UCC; and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee (to the extent the Trustee has been instructed by the Depositor or the Master Servicer) shall take, to the extent consistent with the Pooling and Servicing Agreement, such actions as may be necessary to ensure that, if the Pooling and Servicing Agreement were deemed to create a security interest in the related Assets, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Pooling and Servicing Agreementthis SECTION 6.2.

Appears in 1 contract

Samples: Participation Agreement (Edison Mission Energy)

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