Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except: (a) the Disposition of obsolete, worn out or surplus property in the ordinary course of business; (b) the sale of inventory, the sale or lease of equipment and the license of Intellectual Property, in each case in the ordinary course of business; (c) Dispositions permitted by Section 7.4(b); (d) the sale or issuance of any Subsidiary's Capital Stock to any of the Borrowers or any Subsidiary Guarantor; (e) Restricted Payments permitted under Section 7.6; (f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal to the aggregate fair market value of the Cash Equivalents so Disposed of; (g) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet; (h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted by Section 7.4(d), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and (i) any Recovery Event, provided, that the requirements of Section 2.11(b) are complied with in connection therewith.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(ai) for the Disposition of obsoleteany Property that, in the reasonable judgment of the Borrower, has become uneconomic, obsolete or worn out or surplus property out, and which is disposed of in the ordinary course of business;
(bii) the sale of inventoryinventory in the ordinary course of business;
(iii) for sales or disposition of assets (including accounts receivables) by the Borrower after the date hereof; provided however, the that (A) such sale or lease other disposition shall be made for fair sale value on an arm's-length basis, (B) at least seventy-five percent (75%) of equipment the purchase price therefore shall be paid in cash and such cash portion of the license purchase price shall be payable at (or prior to) the time of Intellectual Propertysuch Disposition, (C) the Borrower uses the net cash proceeds for general corporate purposes (including debt retirement or working capital purposes) and (D) the Borrower shall comply with the Indenture of Mortgage and Deed of Trust and Section 5.03 hereof, if applicable;
(iv) that the Borrower may cancel or make changes or alterations in or substitutions for any and all easements, servitudes, rights of way and similar rights or interests, in each case in the ordinary course of business;
(cv) Dispositions permitted by Section 7.4(b)that the Borrower may grant easements, ground leases or rights-of-way in, upon, over or across property or rights-of-way, provided such grant shall not materially impair the use of the property or rights-of-way for the purposes for which such property or rights-of-way are held, in each case in the ordinary course of business;
(dvi) the sale or issuance for operating leases entered into ordinary course of any Subsidiary's Capital Stock to any of the Borrowers or any Subsidiary Guarantorbusiness;
(evii) Restricted Payments permitted under Section 7.6;
(f) Dispositions for any Disposition of Cash EquivalentsProperty that is Disposed in a sale-leaseback transaction entered into in connection with a payment-in-lieu-of- DC1 - 221047.18 taxes arrangement pursuant to the Revised Statutes of Missouri, provided that if such Disposition is with respect to Collateral, such arrangement expressly allows the aggregate consideration received therefor is at least equal Property to be subject to the aggregate fair market value Liens under the Indenture of Mortgage and Deed of Trust and the Company and the Administrative Agent shall have agreed upon the applicable adjustment to be made to the denominator of the Cash Equivalents so Disposed of;Asset to Loan Ratio as a result of such transaction; or
(gviii) for any Asset Swap, provided that (i) no Default or Event Disposition required by a Requirement of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted by Section 7.4(d), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
(i) any Recovery Event, provided, that the requirements of Section 2.11(b) are complied with in connection therewithLaw.
Appears in 1 contract
Sources: Credit Agreement (Aquila Inc)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, obsolete or worn out Property or surplus property Property no longer useful in the ordinary course business of businessthe Loan Parties;
(b) the sale Disposition of inventorycash or cash equivalents, the sale or lease of equipment and the license of Intellectual PropertyInvestments permitted pursuant to Section 7.8, in each case inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4(b)7.4;
(d) the sale or issuance of any Subsidiary's Loan Party’s Capital Stock (other than Disqualified Stock) to any of the Borrowers or any Subsidiary Guarantorits direct parent;
(e) Restricted Payments permitted under Section 7.6Dispositions of Property having a fair market value not in excess of $40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the consideration received therefor shall be at least 75% in cash or cash equivalents;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal subject to the aggregate fair market value last paragraph of this Section 7.5, the Cash Equivalents so Disposed ofBorrower may enter into any leases with respect to any space on or within the Project;
(g) the dedication of space or other Dispositions of Property in connection with and in furtherance of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicular traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to the development, construction and operation of the Project; provided, that (A) in each case such dedication or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operations (or intended use or operations) of, the Project and (B) in no event shall the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than five acres of Real Estate pursuant to this Section 7.5(g);
(h) any Asset SwapLoan Party may (i) license trademarks, trade names and other Intellectual Property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names or other Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition of the ▇▇▇▇ Home Site Land to or as directed by ▇▇. ▇▇▇▇ provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by ▇▇. ▇▇▇▇ or his designee for the ▇▇▇▇ Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the ▇▇▇▇ Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the ▇▇▇▇ Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of ▇▇. ▇▇▇▇’▇ personal residence on the ▇▇▇▇ Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the ▇▇▇▇ Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the ▇▇▇▇ Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the ▇▇▇▇ Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the ▇▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the ▇▇▇▇ Home Site Land, the provisions of such instrument to burden the ▇▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of ▇▇▇▇ Golf; provided, that the Golf Course Release Conditions are satisfied or (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project (other than the Golf Course), ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise ▇▇▇▇ Golf shall have transferred (previously or in connection with such Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and/or ▇▇▇▇ Golf, as applicable, and to effectuate such Disposition;
(l) Disposition of the Home Site Land; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vii) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise ▇▇▇▇ Golf shall have transferred or reserved for the benefit of the Golf Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and/or the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the ▇▇▇▇▇ Land; provided that (i) any such Disposition shall be in furtherance of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the ▇▇▇▇▇ Land and/or on adjacent Property acquired or to be acquired by any Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain; provided, that the Loan Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or ▇▇▇▇ Golf (except with respect to Dispositions, the proceeds of which are necessary for the organizational maintenance of Capital Corp. or ▇▇▇▇ Golf); provided, that in each case each Loan Party shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of this Section 7.5, subsection (f) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project, (c) no gaming, hotel or casino operations (other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (iiid) the aggregate book value of assets disposed of pursuant no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to transactions permitted by Section 7.4(d)any lessee or any party financing any lessee; provided, not to exceed in the aggregate that (x) prior to the first anniversary Administrative Agent on behalf of the Closing DateLenders shall agree to provide the tenant under any such lease or sublease with a subordination, $15,000,000 or non-disturbance and attornment agreement and (y) thereafterunless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $25,000,000; and
500,000 (iother than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any Recovery Eventsuch lease or sublease to enter into with the Administrative Agent for the benefit of the Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the form of Exhibit N hereto with such changes as the Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such changes do not materially and adversely affect the requirements of Section 2.11(b) are complied with in connection therewith.se
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any SubsidiarySubsidiary of Holdings, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete, (i) obsolete or worn out or surplus property Property in the ordinary course of business or (ii) Property that is no longer useful in the conduct of the Borrower's business in the ordinary course of such business, provided that, in the case of clause (ii), an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b);
(b) the sale of inventory, the sale or lease of equipment and the license of Intellectual Property, in each case inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(a) or (c) or clauses (i) and (ii) of Section 7.4(b);
(d) the sale or issuance of (i) any Subsidiary's Capital Stock to any of (x) the Borrowers Borrower or any Subsidiary Guarantor or (y) any other Subsidiary (provided that neither Subsidiary is a Subsidiary Guarantor) or (ii) Capital Stock (other than Disqualified Stock) of the Borrower to Holdings, in each case in a transaction expressly permitted by Section 7.8;
(e) Restricted Payments permitted under Section 7.6the Disposition by the Borrower and its Subsidiaries of other assets having a fair market value not to exceed $35,000,000 in the aggregate for any fiscal year of the Borrower provided that at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal to the aggregate fair market value of the Cash Equivalents so Disposed of;
(g) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions any Investment made pursuant to Section 7.5(g7.8(b), (h), or (n) or (ii) if the equity interests Disposition of any Investment permitted pursuant to Section 7.8(i); provided that in any Borrower are sold the case of clause (ii), unless such Investment permitted under Section 7.8(i) was acquired in a transaction described Disposition under a clause specified in the proviso to Section 8(k)parenthetical of the definition of "Asset Sale", an amount equal to the aggregate book value of the assets Net Cash Proceeds of such Borrower at Disposition is applied as and to the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted extent required by Section 7.4(d2.12(b), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and;
(ig) any Dispositions resulting from a Recovery Event, provided, that the requirements of Section 2.11(b2.12(b) are complied with in connection therewith;
(h) (i) the discount, write-off or sale of overdue accounts receivables and (ii) the factoring at maturity or collection of any account receivables, in each case in the ordinary course of business;
(i) the lease or license (or sublease or sublicense) of real or personal property (including Intellectual Property) in the ordinary course of business;
(j) the sale or exchange of specific items of Property, so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of Property which are, in the reasonable business judgment of the Borrower, the functional equivalent of the items of Property so sold or exchanged;
(k) the cancellation of any Indebtedness constituting an Investment permitted pursuant to Section 7.8 (other than any Indebtedness of any Foreign Subsidiary to the Borrower or any Subsidiary Guarantor (other than any such Indebtedness cancelled in connection with the sale of such Foreign Subsidiary to a Person other than the Borrower and its Subsidiaries) (any such cancelled Indebtedness of a Foreign Subsidiary, "Cancelled Foreign Debt")) which the Borrower reasonably believes to be uncollectible;
(l) the sale, contribution, transfer or other Disposition of Receivables Assets to a Special Purpose Subsidiary for the fair market value of those assets, less amounts required to be established as reserves and customary discounts pursuant to contractual agreements with entities that are not Affiliates of the Borrower, entered into as part of a Receivable Financing Transaction, so long as no Event of Default under Section 8(a) or 8(f) has occurred and is continuing at the time of such Disposition;
(m) the Disposition of Receivables Assets by a Special Purpose Subsidiary in a Receivable Financing Transaction;
(n) issuances of Stock by a Special Purpose Subsidiary to the Borrower or a Subsidiary in connection with a Receivable Financing Transaction;
(o) Dispositions permitted by Section 7.11, provided that (i) at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents and (ii) an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b); and
(p) issuances by the Borrower or Holdings of its Disqualified Stock permitted by Section 7.2(p); and
(q) Dispositions of the Electrolytic Assets; provided that (i) at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents, (ii) an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b) and (iii) Holdings is in compliance, on a pro forma basis after giving effect to such Disposition and the use of proceeds thereof, with the covenants contained in Section 7.1, in each case recomputed as at the last day of the most recently ended fiscal quarter of Holdings for which the relevant information is available as if such incurrence had occurred on the first day of each relevant period for testing such compliance.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any SubsidiarySubsidiary of the Borrower, issue or sell any shares of such Subsidiary's ’s Capital Stock to any Person, except:
(a) the Disposition of obsolete, obsolete or worn out Property in the ordinary course of business (including the abandonment or surplus property termination of leasehold interests in the ordinary course of business);
(b) the sale Disposition of inventory, the sale or lease of equipment and the license of Intellectual Property, in each case inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b), (c) or (d);
(d) the sale of the Borrower’s treasury stock and the sale or issuance of any Subsidiary's ’s Capital Stock to any of the Borrowers Borrower or any Subsidiary Guarantor;
(e) Restricted Payments permitted under Section 7.6the Disposition of light vehicles (i.e. cars and pick-up trucks but not heavy trucks or rigs) in the ordinary course of business;
(f) Dispositions an exchange or “swap” of Cash Equivalentsfixed, provided that tangible assets of a Loan Party for the aggregate consideration received therefor is at least equal to assets of a person other than another Loan Party in the aggregate fair market value ordinary course of the Cash Equivalents so Disposed of;
(g) any Asset Swapbusiness, provided that (i) no Default the assets received by such Loan Party will be used or Event of Default shall exist useful in such Loan Party’s business and be continuing or result therefrom, (ii) if and such Loan Party received reasonable equivalent value for such assets, such equipment value to be demonstrated to the extent reasonable satisfaction of the Administrative Agent; provided further that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with Fair Market Value of all such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected Loan Parties exchanged or “swapped” in any fiscal year of the Pro Forma Balance SheetBorrower does not exceed $25,000,000 per fiscal year;
(g) Dispositions described on Schedule 7.5(g);
(h) the Disposition of any assets (other assets having a book value, when added to than Capital Stock of Subsidiaries of the Borrower); provided that (i) amounts deemed to be Dispositions pursuant to the aggregate proceeds received from all assets so sold, leased or disposed of in any fiscal year (except as otherwise permitted by this Section 7.5(g7.5), shall not exceed $25,000,000 per fiscal year, (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k)such sale, an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale lease or other disposition shall be for Fair Market Value and (iii) if such sale, lease or other disposition (or series of related sales, leases and dispositions) relates to assets with a Fair Market Value in excess of $1,000,000, the aggregate book value cash consideration received in respect thereof shall be not less than 80% of assets disposed such Fair Market Value; and provided further that up to $5,000,000 of pursuant to transactions such proceeds shall be excluded from the mandatory prepayment requirements of Section 2.12 per fiscal year;
(i) Dispositions of Property constituting investments permitted under Section 7.8 and Dispositions of Property constituting Restricted Payments permitted by Section 7.4(d)7.6;
(j) licenses of Oilfield Intellectual Property;
(k) Dispositions of drill pipe or downhole equipment lost, not to exceed abandoned or destroyed in the aggregate ordinary course of business;
(xl) prior to the first anniversary sale of past due accounts receivable in the Closing Date, $15,000,000 or (y) thereafter, $25,000,000ordinary course of business; and
(im) any Recovery Event, provided, that the requirements of Section 2.11(b) are complied with in connection therewith.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(ai) for the Disposition of obsoleteany Property that, in the reasonable judgment of the Borrower, has become uneconomic, obsolete or worn out or surplus property out, and which is disposed of in the ordinary course of business;
(bii) the sale of inventoryinventory in the ordinary course of business;
(iii) for sales or disposition of assets other than those contemplated by the Asset Sale Events (including accounts receivables) by the Borrower after the date hereof; provided however, the that, (A) such sale or lease other disposition shall be made for fair sale value on an NY3 - 402471.08 arm's-length basis, (B) at least seventy-five percent (75%) of equipment the purchase price therefore shall be paid in cash and such cash portion of the license purchase price shall be payable at (or prior to) the time of Intellectual Propertysuch Disposition and (C) the Borrower uses the net cash proceeds for general corporate purposes (including debt retirement or working capital purposes);
(iv) that the Borrower may cancel or make changes or alterations in or substitutions for any and all easements, servitudes, rights of way and similar rights or interests, in each case in the ordinary course of business;
(cv) Dispositions permitted by Section 7.4(b)that the Borrower may grant easements, ground leases or rights-of-way in, upon, over or across property or rights-of-way, provided such grant shall not materially impair the use of the property or rights-of-way for the purposes for which such property or rights-of-way are held, in each case in the ordinary course of business;
(dvi) the sale or issuance for operating leases entered into ordinary course of any Subsidiary's Capital Stock to any of the Borrowers or any Subsidiary Guarantorbusiness;
(evii) Restricted Payments permitted for any Disposition of Property that is Disposed in a sale-leaseback transaction entered into in connection with a payment-in-lieu-of-taxes arrangement pursuant to the Revised Statutes of Missouri, provided that if such Disposition is with respect to Collateral, such arrangement expressly allows the Property to be subject to the Liens under Section 7.6the Pledge Agreements;
(fviii) for any Disposition required by a Requirement of Law; or
(ix) Dispositions of contemplated by the Asset Sale Events (in which case, the Net Cash Equivalents, Proceeds therefrom will be applied as provided that the aggregate consideration received therefor is at least equal to the aggregate fair market value of the Cash Equivalents so Disposed of;
(g) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g4.02), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted by Section 7.4(d), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
(i) any Recovery Event, provided, that the requirements of Section 2.11(b) are complied with in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Aquila Inc)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of obsolete, business of obsolete or worn out Property or surplus Property no longer useful in the business of the Borrower; provided, that either (i) such Disposition could not reasonably be expected to materially adversely affect the Phase II Land, the Phase II Additions or any of the other Collateral or (ii) with respect to Property Disposed of by reason of its obsolescence or worn out condition, prior to or promptly following such Disposition any such Property shall be replaced with other Property of substantially equal or greater utility and similar use and either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and the Borrower shall promptly subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced;
(b) the Disposition of cash or Cash Equivalents (in each case in transactions otherwise permitted hereunder), inventory (in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in business of the type conducted by the Borrower);
(c) subject to the last paragraph of this Section 6.4, the Borrower may enter into any leases with respect to any space on or within the Phase II Land;
(d) the Borrower may license trademarks and trade names in the ordinary course of business;
(be) the sale incurrence of inventoryLiens permitted under Section 6.2; provided, that any leases (whether or not constituting Permitted Liens) shall be permitted only to the sale or lease of equipment and the license of Intellectual Property, extent provided in each case in the ordinary course of business;
subsection (c) Dispositions permitted by above and the last paragraph of this Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to any of the Borrowers or any Subsidiary Guarantor;
(e) Restricted Payments permitted under Section 7.66.4;
(f) Dispositions the Borrower may terminate the driving range lease, the office building lease, the parking facility lease and/or the art gallery lease described in clauses (a), (b), (c) and (d) of Cash Equivalentsdefinition of "Affiliate Lease and Easement Agreements" and that certain easement granted by the Chamber of Commerce recorded on August 23, provided that 2002 in Book 20020823 as Document No. 1700, in the aggregate consideration received therefor is at least equal to the aggregate fair market value Official Records of the Cash Equivalents so Disposed of;Clark County; and
(g) any Asset Swapcondemnation or other eminen▇ ▇▇▇ain proceeding by any Governmental Authority; provided, provided that the requirements of Section 2.6(b) are complied with in connection therewith. Notwithstanding the foregoing provisions of this Section 6.4, subsection (ic) above shall be subject to the additional provisos that: (a) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and transaction, lease or sublease or would occur after as a result of entering into such transaction, lease or sublease (iiior immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to materially interfere with, impair or detract from the aggregate book value of assets disposed the Phase II Land or the operation of pursuant to transactions permitted by Section 7.4(dthe business of the Borrower or the Phase II Additions, (c) such transaction, lease or sublease is at a fair market rent or value (in light of other similar or comparable prevailing commercial transactions), not to exceed except for the leases between the Borrower and WLV in the aggregate (x) prior to the first anniversary of effect on the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
(i) any Recovery Event, provided, and contains such other terms such that the requirements lease, taken as a whole, is commercially reasonable and fair to the Borrower in light of Section 2.11(bprevailing or comparable transactions in other casinos, hotels, hotel attractions, shopping venues or similarly situated buildings, as applicable, (d) are complied with in connection therewithno gaming, hotel or casino operations may be conducted on any space that is subject to such transaction, lease or sublease during the term of this Agreement, (e) no lease or sublease may provide that the Borrower may subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee, and (f) such lease or sublease is expressly subordinated to the Secured Parties' interests under the Deed of Trust.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. The Borrower shall not, and each of WTI, LP and the Borrower shall not permit any of the Borrower's Subsidiaries to, directly or indirectly, Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any SubsidiarySubsidiary of WTI, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete, obsolete or worn out or surplus property in the ordinary course of business;
(b) the sale of inventoryDispositions permitted by Sections 7.4(d), the sale or lease of equipment 7.4(e) and the license of Intellectual Property, in each case in the ordinary course of business7.4(f);
(c) Dispositions permitted by Section 7.4(b)the sale or issuance of (i) any Subsidiary's Capital Stock (other than Disqualified Stock) to the Borrower or any Subsidiary Guarantor, (ii) the Borrower's Capital Stock (other than Disqualified Stock) to WTI or LP or (iii) LP's Capital Stock (other than Disqualified Stock) to WTI;
(d) the sale Disposition by the Borrower or issuance of any Subsidiary's Capital Stock to any of its Subsidiaries of other assets (except the Borrowers or ▇▇▇▇▇▇ County Bonds) having a fair market value not to exceed $5,000,000 in the aggregate for any Subsidiary Guarantorfiscal year of the Borrower;
(e) Restricted Payments permitted under Section 7.6;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal to the aggregate fair market value of the Cash Equivalents so Disposed of;
(g) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted by Section 7.4(d), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
(i) any Recovery Event, provided, that the requirements of Section 2.11(b2.12(b) are complied with in connection therewith;
(f) the license (or sublicense) of Intellectual Property in the ordinary course of business, consistent with past practice;
(g) Dispositions of equipment in exchange for upgraded equipment of reasonably equivalent or greater value in the ordinary course of business; and
(h) Dispositions of Securitization Assets to one or more Securitization Subsidiaries in connection with a Permitted Securitization.
Appears in 1 contract
Sources: Credit Agreement (Worldspan L P)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of obsolete, business of obsolete or worn out Property or surplus Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business;
) and receivables (b) in connection with the sale collection thereof and otherwise as customary in gaming operations of inventory, the sale or lease of equipment and type conducted by the license of Intellectual Property, in each case in the ordinary course of businessLoan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b));
(d) the sale or issuance of any SubsidiaryLoan Party's Capital Stock (other than Disqualified Stock) to any its direct parent that is a Loan Party in furtherance of the Borrowers or any Subsidiary GuarantorInvestments permitted pursuant to Section 7.8(e);
(e) Restricted Payments permitted under Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 7.63.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement;
(f) Dispositions subject to Section 4.2 of Cash Equivalentsthe Borrower Security Agreement, provided that the aggregate consideration received therefor is at least equal Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the aggregate fair market value of Aircraft Operating Agreement, may enter into any lease with respect to the Cash Equivalents so Disposed ofAircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) (i) any Asset SwapLoan Party may dedicate space within the Project for the purpose of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default shall exist has occurred and be is continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale Disposition, and (iiiii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the aggregate book value Golf Course Land Owner(s) shall be permitted to Dispose of assets disposed the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of pursuant to transactions permitted by Section 7.4(dtheir ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), not and the Lenders hereby consent to exceed in such Dispositions, on the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Recovery EventEvent of Eminent Domain, provided, that the requirements of Section 2.11(b) 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:
Appears in 1 contract
Sources: Loan Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, obsolete or worn out Property or surplus property Property no longer useful in the ordinary course business of businessthe Loan Parties;
(b) the sale Disposition of inventorycash or cash equivalents, the sale or lease of equipment and the license of Intellectual PropertyInvestments permitted pursuant to Section 7.8, in each case inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4(b)7.4;
(d) the sale or issuance of any Subsidiary's Loan Party’s Capital Stock (other than Disqualified Stock) to any of the Borrowers or any Subsidiary Guarantorits direct parent;
(e) Restricted Payments permitted under Section 7.6Dispositions of Property having a fair market value not in excess of $40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the consideration received therefor shall be at least 75% in cash or cash equivalents;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal subject to the aggregate fair market value last paragraph of this Section 7.5, the Cash Equivalents so Disposed ofBorrower may enter into any leases with respect to any space on or within the Project;
(g) the dedication of space or other Dispositions of Property in connection with and in furtherance of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicular traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to the development, construction and operation of the Project; provided, that (A) in each case such dedication or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operations (or intended use or operations) of, the Project and (B) in no event shall the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than five acres of Real Estate pursuant to this Section 7.5(g);
(h) any Asset SwapLoan Party may (i) license trademarks, trade names and other Intellectual Property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names or other Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition of the W▇▇▇ Home Site Land to or as directed by M▇. ▇▇▇▇ provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by M▇. ▇▇▇▇ or his designee for the W▇▇▇ Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the W▇▇▇ Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the W▇▇▇ Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of M▇. ▇▇▇▇’▇ personal residence on the W▇▇▇ Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the W▇▇▇ Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the C▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, w▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the W▇▇▇ Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the W▇▇▇ Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the W▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for M▇. ▇▇▇▇ will be developed on the W▇▇▇ Home Site Land, the provisions of such instrument to burden the W▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of W▇▇▇ Golf; provided, that the Golf Course Release Conditions are satisfied or (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project (other than the Golf Course), w▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise W▇▇▇ Golf shall have transferred (previously or in connection with such Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such w▇▇▇▇ and transport such water to the water features of the Project and the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and/or W▇▇▇ Golf, as applicable, and to effectuate such Disposition;
(l) Disposition of the Home Site Land; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the C▇▇▇▇ County, Nevada Recorder’s Office, (vii) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, w▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise W▇▇▇ Golf shall have transferred or reserved for the benefit of the Golf Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such w▇▇▇▇ and transport such water to the water features of the Project and/or the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the K▇▇▇▇ Land; provided that (i) any such Disposition shall be in furtherance of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the K▇▇▇▇ Land and/or on adjacent Property acquired or to be acquired by any Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain; provided, that the Loan Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or W▇▇▇ Golf (except with respect to Dispositions, the proceeds of which are necessary for the organizational maintenance of Capital Corp. or W▇▇▇ Golf); provided, that in each case each Loan Party shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of this Section 7.5, subsection (f) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project, (c) no gaming, hotel or casino operations (other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (iiid) the aggregate book value of assets disposed of pursuant no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to transactions permitted by Section 7.4(d)any lessee or any party financing any lessee; provided, not to exceed in the aggregate that (x) prior to the first anniversary Administrative Agent on behalf of the Closing DateLenders shall agree to provide the tenant under any such lease or sublease with a subordination, $15,000,000 or non-disturbance and attornment agreement and (y) thereafterunless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $25,000,000; and
500,000 (iother than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any Recovery Eventsuch lease or sublease to enter into with the Administrative Agent for the benefit of the Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the form of Exhibit N hereto with such changes as the Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such changes do not materially and adversely affect the requirements of Section 2.11(b) are complied with in connection therewith.se
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any SubsidiarySubsidiary of Holdings, issue or sell any shares of such Subsidiary's ’s Capital Stock to any Person, except:
(a) the Disposition of obsolete, (i) obsolete or worn out or surplus property Property in the ordinary course of business or (ii) Property that is no longer useful in the conduct of the Borrower’s business in the ordinary course of such business, provided that, in the case of clause (ii), an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b);
(b) the sale of inventory, the sale or lease of equipment and the license of Intellectual Property, in each case inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(a) or (c) or clauses (i) and (ii) of Section 7.4(b);
(d) the sale or issuance of (i) any Subsidiary's ’s Capital Stock to any of (x) the Borrowers Borrower or any Subsidiary Guarantor or (y) any other Subsidiary (provided that neither Subsidiary is a Subsidiary Guarantor) or (ii) Capital Stock (other than Disqualified Stock) of the Borrower to Holdings, in each case in a transaction expressly permitted by Section 7.8;
(e) Restricted Payments permitted under Section 7.6the Disposition by the Borrower and its Subsidiaries of other assets having a fair market value not to exceed $35,000,000 in the aggregate for any fiscal year of the Borrower provided that at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal to the aggregate fair market value of the Cash Equivalents so Disposed of;
(g) any Asset Swap, provided that (i) no Default or Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions any Investment made pursuant to Section 7.5(g7.8(b), (h), or (n) or (ii) if the equity interests Disposition of any Investment permitted pursuant to Section 7.8(i); provided that in any Borrower are sold the case of clause (ii), unless such Investment permitted under Section 7.8(i) was acquired in a transaction described Disposition under a clause specified in the proviso to Section 8(k)parenthetical of the definition of “Asset Sale”, an amount equal to the aggregate book value of the assets Net Cash Proceeds of such Borrower at Disposition is applied as and to the time of such sale and (iii) the aggregate book value of assets disposed of pursuant to transactions permitted extent required by Section 7.4(d2.12(b), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and;
(ig) any Dispositions resulting from a Recovery Event, provided, that the requirements of Section 2.11(b2.12(b) are complied with in connection therewith;
(h) (i) the discount, write-off or sale of overdue accounts receivables and (ii) the factoring at maturity or collection of any account receivables, in each case in the ordinary course of business;
(i) the lease or license (or sublease or sublicense) of real or personal property (including Intellectual Property) in the ordinary course of business;
(j) the sale or exchange of specific items of Property, so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of Property which are, in the reasonable business judgment of the Borrower, the functional equivalent of the items of Property so sold or exchanged;
(k) the cancellation of any Indebtedness constituting an Investment permitted pursuant to Section 7.8 (other than any Indebtedness of any Foreign Subsidiary to the Borrower or any Subsidiary Guarantor (other than any such Indebtedness cancelled in connection with the sale of such Foreign Subsidiary to a Person other than the Borrower and its Subsidiaries) (any such cancelled Indebtedness of a Foreign Subsidiary, “Cancelled Foreign Debt”)) which the Borrower reasonably believes to be uncollectible;
(l) the sale, contribution, transfer or other Disposition of Receivables Assets to a Special Purpose Subsidiary for the fair market value of those assets, less amounts required to be established as reserves and customary discounts pursuant to contractual agreements with entities that are not Affiliates of the Borrower, entered into as part of a Receivable Financing Transaction, so long as no Event of Default under Section 8(a) or 8(f) has occurred and is continuing at the time of such Disposition;
(m) the Disposition of Receivables Assets by a Special Purpose Subsidiary in a Receivable Financing Transaction;
(n) issuances of Stock by a Special Purpose Subsidiary to the Borrower or a Subsidiary in connection with a Receivable Financing Transaction;
(o) Dispositions permitted by Section 7.11, provided that (i) at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents and (ii) an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b); and
(p) issuances by the Borrower or Holdings of its Disqualified Stock permitted by Section 7.2(p); and
(q) Dispositions of the Electrolytic Assets; provided that (i) at least 75% of the consideration received in respect thereof shall be in the form of cash and Cash Equivalents, (ii) an amount equal to the Net Cash Proceeds thereof is applied as and to the extent required by Section 2.12(b) and (iii) Holdings is in compliance, on a pro forma basis after giving effect to such Disposition and the use of proceeds thereof, with the covenants contained in Section 7.1, in each case recomputed as at the last day of the most recently ended fiscal quarter of Holdings for which the relevant information is available as if such incurrence had occurred on the first day of each relevant period for testing such compliance.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition in the ordinary course of obsolete, business of obsolete or worn out Property or surplus Property no longer useful in the business of the applicable Loan Party; provided, that either (i) with respect to Property Disposed by reason of it being no longer useful in the business of the applicable Loan Party, such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral or (ii) with respect to Property Disposed of by reason of its obsolescence or worn out condition prior to or promptly following such Disposition any such Property shall be replaced with other Property of substantially equal or greater utility and either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business;
) and receivables (b) in connection with the sale collection thereof and otherwise as customary in gaming operations of inventory, the sale or lease of equipment and type conducted by the license of Intellectual Property, in each case in the ordinary course of businessLoan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b));
(d) the sale or issuance of any SubsidiaryLoan Party's Capital Stock (other than Disqualified Stock) to any its direct parent that is a Loan Party in furtherance of the Borrowers or any Subsidiary GuarantorInvestments permitted pursuant to Section 7.8(e);
(e) Restricted Payments permitted under Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 7.63.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to Section 4.7 of the Borrower Security Agreement;
(f) Dispositions subject to Section 4.2 of Cash Equivalentsthe Borrower Security Agreement, provided that the aggregate consideration received therefor is at least equal Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the aggregate fair market value of Aircraft Operating Agreement, may enter into any lease with respect to the Cash Equivalents so Disposed ofAircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) any Asset SwapLoan Party may dedicate space within the Project for the purpose of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate pedestrians or traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto;
(h) the Loan Parties may license trademarks and trade names in the ordinary course of business;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) The applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default shall exist has occurred and be is continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale Disposition, and (iiiii) the aggregate book value of assets disposed of such disposition is permitted pursuant to transactions the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) The Golf Course Owner(s) shall be permitted by Section 7.4(dto Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), not and the Lenders hereby consent to exceed in such Dispositions, on the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) The applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Recovery EventEvent of Eminent Domain, provided, that the requirements of Section 2.11(b) 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Existing Aircraft so long as (i) within three (3) Business Days after such Disposition, World Travel or a trust of which World Travel is the beneficial interest holder acquires the Replacement Aircraft, (ii) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and no Loan Party applies any other amounts to such acquisition other than (x) proceeds of equity capital contributions from Wynn Resorts (or another Loan Party to the extent acting as an intermediary for purposes of contributing equity capital contributions from Wynn Resorts) and (y) proceeds from Advances hereunder and (iii) such Disposition of the Existing Aircraft and the acquisition of the Permitted Aircraft is permitted pursuant to the Other Indebtedness; and
(q) Valvino shall be permitted to effectuate the Valvino Water Permit Transfer (or any portion thereof) and DIIC shall be permitted to effectuate the DIIC Water Transfer (or any portion thereof).
Appears in 1 contract
Sources: Loan Agreement (Wynn Las Vegas LLC)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of obsolete, business of obsolete or worn out Property or surplus Property no longer useful in the business of the applicable Loan Party; provided, that either (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the other Collateral or (ii) with respect to Property Disposed of by reason of its obsolescence or worn out condition, prior to or promptly following such Disposition any such Property shall be replaced with other Property of substantially equal or greater utility and similar use and either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and the applicable Loan Party shall promptly subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced;
(b) the Disposition of Cash or Cash Equivalents (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business;
) and receivables (b) in connection with the sale collection thereof and otherwise as customary in gaming operations of inventory, the sale or lease of equipment and type conducted by the license of Intellectual Property, in each case in the ordinary course of businessLoan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b);
(d) the sale or issuance of any SubsidiaryLoan Party's Capital Stock (other than Disqualified Stock) to any of the Borrowers or any Subsidiary Guarantorits direct parent that is a Loan Party in consideration for Investments permitted pursuant to Section 7.8(e);
(e) Restricted Payments permitted under Section 7.6Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received shall be cash;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal subject to the aggregate fair market value last paragraph of this Section 7.5, the Cash Equivalents so Disposed ofBorrower may enter into any leases with respect to any space on or within the Project and any subleases with respect to any space in the Phase II Land Building;
(g) (x) any Asset SwapLoan Party may dedicate space within the Project for the purpose of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operations of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (y) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (I) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (y), (II) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 with respect to any real property acquired pursuant to this clause (y) and (III) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Closing Date);
(i) the incurrence of Liens permitted under Section 7.3; provided, that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default shall exist has occurred and be is continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale Disposition and such Disposition is permitted under the other Financing Agreements, (ii) the cash purchase price paid by ▇▇. ▇▇▇▇ to such Golf Course Land Owner(s) for the ▇▇▇▇ Home Site Land is in immediately available funds and equal to or greater than the fair market value of the ▇▇▇▇ Home Site Land, as determined in good faith by such Golf Course Land Owner(s), (iii) such Golf Course Land Owner(s) contributes the aggregate book entire amount of the purchase price paid by ▇▇. ▇▇▇▇ for the ▇▇▇▇ Home Site Land to the Borrower as a common equity capital contribution, (iv) the Mortgaged Properties affected by the Disposition of the ▇▇▇▇ Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified and demonstrated to the Initial Arrangers, to the reasonable satisfaction of the Initial Arrangers, that construction of ▇▇. ▇▇▇▇'▇ personal residence on the ▇▇▇▇ Home Site will not interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of assets disposed the Project, (vi) the applicable Mortgages with respect to the Golf Course Land shall have been amended to reflect the exclusion of the legal description of the ▇▇▇▇ Home Site Land (or applicable portion thereof) as a result of the transfer of fee ownership therein and re-recorded at the ▇▇▇▇▇ County, Nevada Recorder's Office, (vii) the Borrower shall have delivered to the Administrative Agent: (A) (1) a legal opinion from counsel reasonably acceptable to the Administrative Agent to the effect that the Mortgages with respect to the Golf Course Land, to the extent amended and re-recorded pursuant to transactions permitted subsection (vi) above, are enforceable in accordance with their respective terms and are effective to create the security interests described therein and (2) such other legal opinions as the Administrative Agent may reasonably request, each in form and substance reasonably satisfactory to the Administrative Agent, and (B) endorsements, or commitments by Section 7.4(d)the Title Insurer to issue endorsements, not to exceed the Title Policy, in each case in form and substance satisfactory to the aggregate Administrative Agent, insuring the continuing perfection and priority of the respective Liens on the Golf Course Land (after giving effect to the release of the ▇▇▇▇ Home Site Land and the amendments and re-recordations contemplated by subsection (vi) above) and (viii) (A) either (x) prior no Points of Diversion with respect to the first anniversary Water Permits, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under the Water Permits to the Golf Course Land or the water features of the Closing DateLe Rêve hotel and casino, $15,000,000 as the case may be, are located on the Wynn Home Site Land or (y) thereafterthe applicable Golf Course Land Owner(s) shall have transferred at no cost to the Borrower and/or ▇▇▇▇ Resorts Holdings, $25,000,000as the case may be, (I) in the case of Points of Diversion and associated ▇▇▇▇▇ with respect to the Valvino Water Permits or the DIIC Casino Water Permit, and rights-of-way necessary for the transportation of water available under such Water Permits to the water features of the Le Rêve hotel and casino, such easements to the Borrower as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Le Rêve hotel and casino and (II) in the case of Points of Diversion and associated ▇▇▇▇▇ with respect to all other DIIC Water Permits, and rights-of-way necessary for the transportation of water available under such Water Permits to the Golf Course Land, such easements to the Borrower and ▇▇▇▇ Resorts Holdings as are necessary for such Persons to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the Golf Course Land and (B) the Borrower and ▇▇▇▇ Resorts Holdings, as the case may be, shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired pursuant to clause (viii)(A) above. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the appropriate Golf Course Land Owners such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably necessary to release the Liens granted to the Lenders in the ▇▇▇▇ Home Site Land, and to permit such Disposition; andprovided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the ▇▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the ▇▇▇▇ Home Site Land, the provisions of such instrument to burden the ▇▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) the Golf Course Land Owners shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) any Recovery Eventno Default or Event of Default has occurred and is continuing at the time of such Disposition and such Dispositions are permitted under the other Financing Agreements, (ii) such Dispositions occur on or after the third anniversary of the Opening Date, (iii) at the time of such Dispositions, the Consolidated Leverage Ratio of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was 3.0 to 1.0 or less (provided, that there shall be excluded from the requirements calculation of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course for such four full consecutive fiscal quarters), (iv) after giving effect to such Dispositions, the senior secured long-term Indebtedness under the Facilities shall be rated at least Ba1 by ▇▇▇▇▇'▇ and BB+ by S&P and (v) (A) either (x) no Points of Diversion with respect to the Valvino Water Permits or the DIIC Casino Water Permit, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such Water Permits to the water features of the Le Rêve hotel and casino are located on the Golf Course Land or (y) the applicable Golf Course Land Owner(s) shall have transferred at no cost to the Loan Parties such easements to the Borrower as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Le Rêve hotel and casino and (B) the Borrower shall have taken all actions required pursuant to Section 2.11(b6.10 with respect to any Property acquired pursuant to clause (v)(A) above. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably necessary to release the Liens granted to the Lenders in the Golf Course Land, Desert Inn Water, Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit) (including, without limitation all Capital Stock of Desert Inn Water, and Desert Inn Improvement and Property of Desert Inn Water and Desert Inn Improvement) and to permit such Dispositions;
(l) the applicable Golf Course Land Owners shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is permitted under the other Financing Agreements, (ii) at the time of such
(1) a legal opinion from counsel reasonably acceptable to the Administrative Agent to the effect that the Mortgages with respect to the Golf Course Land, to the extent amended and re-recorded pursuant to subsection (v) above, are complied enforceable in accordance with their respective terms and are effective to create the security interests described therein and (2) such other legal opinions as the Administrative Agent may reasonably request, each in connection therewith.form and substance reasonably satisfactory to the Administrative Agent, and (B) endorsements, or commitments by the Title Insurer to issue endorsements, to the Title Policy, in each case in form and substance satisfactory to the Administrative Agent, insuring the continuing perfection and priority of the respective Liens on the Golf Course Land (after giving effect to the release of the Home Site Land and the amendments and re-recordations contemplated by subsection (v) above) and (vii) (A) either (x) no Points of Diversion with respect to the Water Permits, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under the Water Permits to the Golf Course Land or the water features of the Le Rêve hotel and casino, as the case may be, are located on the Home Site Land or (y) the applicable Golf Course Land Owner(s) shall have transferred at no cost to the Loan Parties (I) in the case of Points of Diversion and associated ▇▇▇▇▇ with respect to the Valvino Water Permits or the DIIC Casino Water Permit, and rights-of-way necessary for the transportation of water available under such Water Permits to the water features of the Le Rêve hotel and casino, such easements to the Borrower as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Le Rêve hotel and casino and (II) in the case of Points of Diversion with respect to all other DIIC Water Permits and rights-of-way necessary for the transportation of water available under such Water Permits to the Golf Course Land, such easements to the Borrower and ▇▇▇▇ Resorts Holdings as are necessary for such Persons to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport the water drawn therefrom to the Golf Course Land and (B) the Borrower and ▇▇▇▇ Resorts Holdings, as the case may be, shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired pursuant to clause (vii)(A) above. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the appropriate Golf Course Land Owners such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably necessary to release the Liens granted to the Lenders in the Home Site Land, and to permit such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's ’s Capital Stock to any Person, except:
(a) the Disposition of obsolete, worn out or surplus property in the ordinary course of business of obsolete or worn out property, or surplus real property not needed in the Borrower’s business;
(b) the sale of inventory, the sale or lease of equipment and the license of Intellectual Property, in each case inventory in the ordinary course of businessbusiness (including, without limitation, the leasing of space on Towers) and the sale of accounts receivable in the ordinary course of business which, in the reasonable discretion of the Borrower, should be sold to a collection agency not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Section 7.4(b)6.4(b) and Dispositions of Cash Equivalents;
(d) the sale or issuance of any Subsidiary's ’s Capital Stock to any of the Borrowers Borrower or any Subsidiary Guarantor;
(e) Restricted Payments permitted under Section 7.6the Disposition of other assets having a fair market value not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(f) Dispositions the Disposition of Cash Equivalents, provided that the aggregate consideration received therefor is Towers in exchange for towers with Total Tower Revenue at least equal in amount to the aggregate fair market value revenue of the Cash Equivalents so such Disposed ofTowers;
(g) any Asset SwapSale or Recovery Event, provided that (i) no Default or Event of Default shall exist and be continuing or result therefromprovided, (iix) if and to the extent in each case, that the Borrowers and their Subsidiaries receive consideration for the cable television system requirements of Section 2.10(a) or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof2.10(b),as applicable, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be are complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafterin the case of any Asset Sale, 25at least 90% of the aggregate book value consideration payable for such Asset Sale is paid in cash on the date of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheetsuch Disposition;
(h) the Disposition Dispositions of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g)non-Qualified Towers, (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso work-in-progress related to Section 8(k)cancelled sites, an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) assets related to the aggregate book value Services Business, provided that, in each case, requirements of assets disposed Section 2.10(c) are complied with;
(i) the Disposition of Towers or Tower sites by the Borrower or any of its Subsidiaries to a Subsidiary Guarantor; provided that, after giving effect to any Disposition to a Subsidiary Guarantor, such Towers and Tower sites are subject to a Mortgage pursuant to transactions permitted by Section 7.4(d5.9(b), not to exceed in the aggregate (x) prior to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000; and
(ij) Dispositions of Towers or Tower sites (and any Recovery Eventrelated assets) described on Schedule 6.5(j) pursuant to the AAT Purchase Agreement, providedprovided that, the Net Cash Proceeds of such Dispositions shall be used to repay Revolving Credit Loans pursuant to Section 2.10(c); provided that, it is understood and agreed that if such Net Cash Proceeds are received by the requirements of Section 2.11(b) are complied with in connection therewithBorrower or its Subsidiaries after the Conversion Date, the Borrower and its Subsidiaries shall not be required to prepay the Loans.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, obsolete or worn out Property or surplus property Property no longer useful in the ordinary course business of businessthe Loan Parties;
(b) the sale Disposition of inventorycash or cash equivalents, the sale or lease of equipment and the license of Intellectual PropertyInvestments permitted pursuant to Section 7.8, in each case inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4(b)7.4;
(d) the sale or issuance of any Subsidiary's Loan Party’s Capital Stock (other than Disqualified Stock) to any of the Borrowers or any Subsidiary Guarantorits direct parent;
(e) Restricted Payments permitted under Section 7.6Dispositions of Property having a fair market value not in excess of $40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the consideration received therefor shall be at least 75% in cash or cash equivalents;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal subject to the aggregate fair market value last paragraph of this Section 7.5, the Cash Equivalents so Disposed ofBorrower may enter into any leases with respect to any space on or within the Project;
(g) the dedication of space or other Dispositions of Property in connection with and in furtherance of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicular traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to the development, construction and operation of the Project; provided, that (A) in each case such dedication or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operations (or intended use or operations) of, the Project and (B) in no event shall the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than five acres of Real Estate pursuant to this Section 7.5(g);
(h) any Asset SwapLoan Party may (i) license trademarks, trade names and other Intellectual Property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names or other Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition of the Wynn Home Site Land to or as directed by ▇▇. ▇▇▇▇ provided that (i) no Default or Event of Default shall exist has occurred and be is continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by ▇▇. ▇▇▇▇ or his designee for the Wynn Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the Wynn Home Site Land, as determined in good faith by the Loan Parties, (iii) the aggregate book Mortgaged Properties affected by the Disposition of the Wynn Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of ▇▇. ▇▇▇▇’▇ personal residence on the Wynn Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of assets disposed the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of pursuant the Wynn Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to transactions permitted the Administrative Agent and the Collateral Agent an endorsement, or a commitment by Section 7.4(d)the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to exceed any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Wynn Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the aggregate Wynn Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Wynn Home Site Land to the effect that until the earlier of (x) prior to the first anniversary Disposition of the Closing Date, $15,000,000 Golf Course Land in accordance with Section 7.5(k) or (y) thereafterthe payment in full of the Obligations, $25,000,000only a personal residence for ▇▇. ▇▇▇▇ will be developed on the Wynn Home Site Land, the provisions of such instrument to burden the Wynn Home Site Land for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of ▇▇▇▇ Golf; and
provided, that (i) any Recovery Eventno Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that that, in each such case, there shall be excluded from such calculations of the requirements of Section 2.11(bConsolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) are complied with in connection therewith.and
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, obsolete or worn out Property or surplus property Property no longer useful in the ordinary course business of businessthe Loan Parties;
(b) the sale Disposition of inventorycash or cash equivalents, the sale or lease of equipment and the license of Intellectual PropertyInvestments permitted pursuant to Section 7.8, in each case inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4(b)7.4;
(d) the sale or issuance of any SubsidiaryLoan Party's Capital Stock (other than Disqualified Stock) to any of the Borrowers or any Subsidiary Guarantorits direct parent;
(e) Restricted Payments permitted under Section 7.6Dispositions of Property having a fair market value not in excess of $25,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Phase I Opening Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the consideration received therefor shall be at least 85% in cash or cash equivalents;
(f) subject to the last paragraph of this Section 7.5, the Borrower may enter into any leases with respect to any space on or within the Project;
(g) the dedication of space or other Dispositions of Cash EquivalentsProperty in connection with and in furtherance of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicular traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to the development, construction and operation of the Project; provided, that (A) in each case such dedication or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operations (or intended use or operations) of, the Project and (B) in no event shall the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than five acres of Real Estate pursuant to this Section 7.5(g);
(h) any Loan Party may (i) license trademarks, trade names and other Intellectual Property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names or other Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition of the Wynn Home Site Land to or as directed by Mr. Wynn provided that (i) ▇▇ ▇efault or Event of Default has occurr▇▇ ▇▇▇ ▇s continuing at the aggregate consideration received therefor time of such Disposition and such Disposition is at least not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by Mr. Wynn or his designee for the Wynn Home Site Land is in immediate▇▇ ▇▇▇▇▇able funds and equal to o▇ ▇▇eater than the aggregate fair market value of the Cash Equivalents so Disposed Wynn Home Site Land, as determined in good faith by the Loan Parties, (▇ii) the Mortgaged Properties affected by the Disposition of the Wynn Home Site Land constitute separate legal parcels under Nevada R▇▇▇▇ed Statutes, Chapter 278, (iv) the Borrower shall have certified that construction of Mr. Wynn's personal residence on the Wynn Home Site could not reason▇▇▇▇ ▇▇ ▇▇pected to materially interf▇▇▇ with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Wynn Home Site Land from the Lien of the applicable Mortgage(s) and ▇▇▇▇ documentation shall have been recorded at the Clark County, Nevada Recorder's Office, (vi) the Borrower shall have ▇▇▇▇vered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, wells associated therewith or rights-of-way necessary for the transp▇▇▇▇▇ion of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Wynn Home Site Land. Upon satisfaction of the foregoing conditions, ▇▇▇ Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Wynn Home Site Land, and to effectuate such Disposition; provided, t▇▇▇ an instrument reasonably acceptable to the Administrative Agent is recorded against the Wynn Home Site Land to the effect that until the earlier of (x) the ▇▇▇▇osition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for Mr. Wynn will be developed on the Wynn Home Site Land, the provision▇ ▇▇ ▇▇▇h instrument to burden the ▇▇▇n Home Site Land for the benefit of the Golf Course Land;
(gk) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of Wynn Golf; provided, that (i) no Default or Event of Default has occ▇▇▇▇d and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Commitment Sunset Date (if the Phase II Approval Date has not by then occurred) or the Phase II Completion Date (if the Phase II Approval Date has occurred), (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any Asset Swapapplicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project (other than the Golf Course), wells associated therewith or rights-of-way necessary for the transp▇▇▇▇▇ion of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise Wynn Golf shall have transferred (previously or in connection with s▇▇▇ Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such wells and transport such water to the water features of the Project ▇▇▇ ▇he Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and Wynn Golf and to effectuate such Disposition;
(l) ▇▇▇position of the Home Site Land; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Commitment Sunset Date (if the Phase II Approval Date has not by then occurred) or the Phase II Completion Date (if the Phase II Approval Date has occurred), (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the Clark County, Nevada Recorder's Office, (vii) the Borrower shall hav▇ ▇▇▇ivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, wells associated therewith or rights-of-way necessary for the transp▇▇▇▇▇ion of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise Wynn Golf shall have transferred or reserved for the benefit of the ▇▇▇▇ Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such wells and transport such water to the water features of the Project ▇▇▇/▇r the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the Koval Land; provided that (i) any such Disposition shall be in furth▇▇▇▇▇e of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the Koval Land and/or on adjacent Property acquired or to be acquired by ▇▇▇ Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain; provided, that the Loan Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or Wynn Golf (except with respect to Dispositions, the proceeds of whic▇ ▇▇e necessary for the organizational maintenance of Capital Corp. or Wynn Golf); provided, that in each case each Loan Party shall have t▇▇▇▇ all actions required pursuant to Section 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of this Section 7.5, subsection (f) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project, (c) no gaming, hotel or casino operations (other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (iiid) the aggregate book value of assets disposed of pursuant no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to transactions permitted by Section 7.4(d)any lessee or any party financing any lessee; provided, not to exceed in the aggregate that (x) prior to the first anniversary Administrative Agent on behalf of the Closing DateLenders shall agree to provide the tenant under any such lease or sublease with a subordination, $15,000,000 or non-disturbance and attornment agreement and (y) thereafterunless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $25,000,000; and
500,000 (iother than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any Recovery Eventsuch lease or sublease to enter into with the Administrative Agent for the benefit of the Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the form of Exhibit N hereto with such changes as the Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that the requirements of Section 2.11(b) are complied with in connection therewith.such
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, or issue or sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, obsolete or worn out Property or surplus property Property no longer useful in the ordinary course business of businessthe Loan Parties;
(b) the sale Disposition of inventorycash or cash equivalents, the sale or lease of equipment and the license of Intellectual PropertyInvestments permitted pursuant to Section 7.8, in each case inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4(b)7.4;
(d) the sale or issuance of any Subsidiary's Loan Party’s Capital Stock (other than Disqualified Stock) to any of the Borrowers or any Subsidiary Guarantorits direct parent;
(e) Restricted Payments permitted under Section 7.6Dispositions of Property having a fair market value not in excess of $40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the consideration received therefor shall be at least 75% in cash or cash equivalents;
(f) Dispositions of Cash Equivalents, provided that the aggregate consideration received therefor is at least equal subject to the aggregate fair market value last paragraph of this Section 7.5, the Cash Equivalents so Disposed ofBorrower may enter into any leases with respect to any space on or within the Project;
(g) the dedication of space or other Dispositions of Property in connection with and in furtherance of constructing (i) a mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicular traffic, (iii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to the development, construction and operation of the Project; provided, that (A) in each case such dedication or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operations (or intended use or operations) of, the Project and (B) in no event shall the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than five acres of Real Estate pursuant to this Section 7.5(g);
(h) any Asset SwapLoan Party may (i) license trademarks, trade names and other Intellectual Property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names or other Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition of the ▇▇▇▇ Home Site Land to or as directed by ▇▇. ▇▇▇▇ provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by ▇▇. ▇▇▇▇ or his designee for the ▇▇▇▇ Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the ▇▇▇▇ Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the ▇▇▇▇ Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of ▇▇. ▇▇▇▇’▇ personal residence on the ▇▇▇▇ Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the ▇▇▇▇ Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the ▇▇▇▇ Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the ▇▇▇▇ Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the ▇▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the ▇▇▇▇ Home Site Land, the provisions of such instrument to burden the ▇▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of ▇▇▇▇ Golf; provided, that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project (other than the Golf Course), ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise ▇▇▇▇ Golf shall have transferred (previously or in connection with such Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and/or ▇▇▇▇ Golf, as applicable, and to effectuate such Disposition;
(l) Disposition of the Home Site Land; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vii) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise ▇▇▇▇ Golf shall have transferred or reserved for the benefit of the Golf Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and/or the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the ▇▇▇▇▇ Land; provided that (i) any such Disposition shall be in furtherance of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the ▇▇▇▇▇ Land and/or on adjacent Property acquired or to be acquired by any Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain; provided, that the Loan Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or ▇▇▇▇ Golf (except with respect to Dispositions, the proceeds of which are necessary for the organizational maintenance of Capital Corp. or ▇▇▇▇ Golf); provided, that in each case each Loan Party shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of this Section 7.5, subsection (f) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing or result therefrom, (ii) if and to the extent that the Borrowers and their Subsidiaries receive consideration for the cable television system or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof, such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafter, 25% of the aggregate book value of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheet;
(h) the Disposition of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g), (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso to Section 8(k), an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project, (c) no gaming, hotel or casino operations (other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (iiid) the aggregate book value of assets disposed of pursuant no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to transactions permitted by Section 7.4(d)any lessee or any party financing any lessee; provided, not to exceed in the aggregate that (x) prior to the first anniversary Administrative Agent on behalf of the Closing DateLenders shall agree to provide the tenant under any such lease or sublease with a subordination, $15,000,000 or non-disturbance and attornment agreement and (y) thereafterunless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $25,000,000; and
500,000 (iother than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any Recovery Eventsuch lease or sublease to enter into with the Administrative Agent for the benefit of the Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the form of Exhibit N hereto with such changes as the Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such changes do not materially and adversely affect the requirements security interests granted in favor of Section 2.11(b) are complied with in connection therewith.the Lenders und
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's ’s Capital Stock to any Person, except:
(a) the Disposition of obsolete, worn out or surplus property in the ordinary course of business of obsolete or worn out property, or surplus real property not needed in the Borrower’s business;
(b) the sale of inventory, the sale or lease of equipment and the license of Intellectual Property, in each case inventory in the ordinary course of businessbusiness (including, without limitation, the leasing of space on Towers) and the sale of accounts receivable in the ordinary course of business which, in the reasonable discretion of the Borrower, should be sold to a collection agency not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Section 7.4(b)) and Dispositions of Cash Equivalents;
(d) the sale or issuance of any Subsidiary's ’s Capital Stock to any of the Borrowers Borrower or any Subsidiary Guarantor;
(e) Restricted Payments permitted under Section 7.6the Disposition of other assets having a fair market value not to exceed $1,000,000 in the aggregate for any fiscal year of the Borrower;
(f) Dispositions the Disposition of Cash Equivalents, provided that the aggregate consideration received therefor is Towers in exchange for towers with Total Tower Revenue at least equal in amount to the aggregate fair market value revenue of the Cash Equivalents so such Disposed ofTowers;
(g) any Asset SwapSale or Recovery Event, provided that (i) no Default or Event of Default shall exist and be continuing or result therefromprovided, (iix) if and to the extent in each case, that the Borrowers and their Subsidiaries receive consideration for the cable television system requirements of Section 2.10(a) or systems (or portions thereof) and related assets transferred by them in connection with such Asset Swap that is in addition to the cable television systems (or portions thereof) and related assets received upon Disposition thereof2.10(b), such Asset Swap shall be deemed to be a Disposition of assets and shall be permitted only if the provisions of Sections 7.5(h) and 2.11(b) shall be as applicable, are complied with in connection therewith and (iii) the aggregate book value of assets Disposed of pursuant to Asset Swaps shall not exceed (x) prior to the first anniversary of the Closing Date, 15% or (y) thereafterin the case of any Asset Sale, 25at least 90% of the aggregate book value consideration payable for such Asset Sale is paid in cash on the date of the combined consolidated total assets of the Borrowers and their Subsidiaries as reflected in the Pro Forma Balance Sheetsuch Disposition;
(h) the Disposition Dispositions of other assets having a book value, when added to (i) amounts deemed to be Dispositions pursuant to Section 7.5(g)non-Qualified Towers, (ii) if the equity interests in any Borrower are sold in a transaction described in the proviso work-in-progress related to Section 8(k)cancelled sites, an amount equal to the aggregate book value of the assets of such Borrower at the time of such sale and (iii) assets related to the aggregate book value Services Business, provided that, in each case, requirements of assets disposed Section 2.10(c) are complied with;
(i) the Disposition of Towers or Tower sites by the Borrower or any of its Subsidiaries to a Subsidiary Guarantor; provided that, after giving effect to any Disposition to a Subsidiary Guarantor, such Towers and Tower sites are subject to a Mortgage pursuant to transactions permitted by Section 7.4(d6.9(b), not to exceed in the aggregate ;
(xj) prior Dispositions of Towers or Tower sites (and any related assets) described on Schedule 7.5(j) pursuant to the first anniversary of the Closing Date, $15,000,000 or (y) thereafter, $25,000,000AAT Purchase Agreement; and
(ik) Dispositions of the Towers listed on Schedule 7.5(k) which are currently held for sale by the Borrower and its Subsidiaries and are included in “discontinued operations”, together with any Recovery Event, provided, that the requirements of Section 2.11(b) are complied with in connection therewithwork product related to such Towers.
Appears in 1 contract