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 or worn out property or surplus property in the ordinary course of business; (b) the sale of inventory in the ordinary course of business; (c) Dispositions permitted by Sections 7.4(b), (c) and (d); (d) the sale or issuance of the Capital Stock of any Subsidiary of an Applicable Party to such Applicable Party, any Subsidiary Guarantor or any Mortgage/Mezzanine Borrower; (e) the Disposition of other assets (other than the Affiliate Revolving Notes, the Secured Guarantor Notes, the Affiliate Borrower Loan Documents and the Subordinated Affiliate Notes Payable), provided that, (i) such Disposition is at fair market value, as reasonably determined by the ASOT Group Member making such Disposition, (ii) such Disposition shall not result in a Material Adverse Effect, (iii) at the time of such Disposition, a certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessary; (f) any Recovery Event, provided, that the requirements of Section 2.12(c) are complied with in connection therewith; (g) Permitted Leases; (h) Investments permitted by Section 7.8; (i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” or similar arrangements in joint venture agreements of the Joint Ventures in effect on the date hereof; (j) licenses of Intellectual Property in the ordinary course of business; (k) Dispositions, by means of trade-in, of equipment used in the ordinary course of business, so long as such equipment is replaced or substituted, substantially concurrently, by like-equipment; (l) the sale or issuance of the Capital Stock of Holdings I Corp, Holdings I, Holdings II, the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and (m) the Borrower may Dispose of the German Assets to the Affiliate Borrower I-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(c) of the Affiliate Borrower I-B Credit Agreement.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition Dispositions of obsolete or obsolete, damaged, worn out property out, aged, used or surplus property property, whether now owned or hereafter acquired in the ordinary course of business, and Dispositions of property no longer used or useful in the conduct of the business of the Parent Borrower or any of its Restricted Subsidiaries, in each case determined by the Parent Borrower in good faith;
(b) the sale of inventory and other assets (other than accounts receivable) held for sale in the ordinary course of business;
(c) Dispositions permitted by Sections 7.4(bSection 6.4 (other than Section 6.4(b)(ii), (c) and (d);
(d) (i) the sale or issuance of the any Restricted Subsidiary’s Capital Stock to any Loan Party or the sale or issuance of any Subsidiary Excluded Subsidiary’s Capital Stock to another Restricted Subsidiary; provided, that the Guarantors’ collective ownership interest therein is not diluted; and (ii) the sale or issuance of an Applicable Party to such Applicable Partyany Capital Stock of, or any Indebtedness or other securities of, any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerUnrestricted Subsidiary;
(e) Dispositions of Receivables Assets pursuant to factoring agreements or other similar agreements or arrangements including in connection with a Receivables Facility or a Factoring Facility, in each case so long as the consideration for any such Disposition is in the form of cash or subordinated interests in the Receivables Assets being sold;
(f) the Disposition of cash or Cash Equivalents or investment grade securities;
(g) (i) the non-exclusive license or sub-license of Intellectual Property in the ordinary course of business and (ii) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any Intellectual Property;
(h) the lease, sublease, license or sublicense of property as described in Section 6.3(i);
(i) the Disposition of surplus or other property no longer used or useful in the business of the Group Members in the ordinary course of business;
(j) the Disposition of other assets (other than including the Affiliate Revolving Notesissuance or sale of any shares of a Restricted Subsidiary’s Capital Stock) from and after the Closing Date, the Secured Guarantor Notes, the Affiliate Borrower Loan Documents and the Subordinated Affiliate Notes Payable), provided thatso long as (i) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $5 million, (iA) at least 75.0% of the consideration therefor is in the form of cash or Cash Equivalents or exchanged for other assets of comparable or greater market value or usefulness to the business of the Group Members, taken as a whole and (B) such Disposition is made at fair market value, value (as reasonably determined in good faith by the ASOT Group Member making such Disposition, Parent Borrower) and (ii) such Disposition shall not result in a Material Adverse Effect, (iii) at the time of such Disposition, a certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at the time of such Disposition; provided, that (A) any liabilities (as shown on the Parent Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the payment in cash of the Obligations (other than contingent indemnification and reimbursement obligations as to which no claim has been asserted by the Person entitled thereto), that are assumed by the transferee with respect to the applicable Disposition and, in the case of liabilities that constitute Indebtedness, for which the Parent Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B)any securities received by the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value (as determined in good faith by the Parent Borrower) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that has not been converted into cash, does not exceed the greater of (A) $15 million and (B) 15% of Trailing Four Quarter Consolidated EBITDA, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time or after received and without giving effect to such Disposition and subsequent changes in value, shall be deemed for purposes of clause (ivj)(i) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessarybe cash;
(fk) the Disposition of assets subject to or in connection with any Recovery Event, provided, that the requirements of Section 2.12(c) are complied with in connection therewith;
(gl) Permitted LeasesDispositions consisting of Restricted Payments permitted by Section 6.6;
(hm) Dispositions consisting of Investments permitted by Section 7.86.7;
(n) Dispositions consisting of Liens permitted by Section 6.3;
(o) Dispositions of assets pursuant to Sale and Leaseback Transactions permitted by Section 6.10;
(p) Dispositions of property to any Group Member; provided, that if the transferor of such property is a Loan Party and such Disposition is not for fair value (as reasonably determined by the Parent Borrower) (i) Asset Sales the transferee thereof must be the Parent Borrower, any other Borrower or a Subsidiary Guarantor (or must become a Subsidiary Guarantor substantially simultaneously with such Disposition) or (ii) to the extent constituting an Investment, such Disposition must be a permitted Investment in a Non-Loan Party Subsidiary or in a Canadian Loan Party in accordance with Section 6.7;
(q) Dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to “forced-sale,” “customary buy-sell,” “put-call” or similar /sell arrangements between, the joint venture parties set forth in joint venture agreements of the Joint Ventures in effect on the date hereofarrangements and similar binding arrangements;
(jr) licenses Dispositions of Intellectual Property accounts receivable in connection with the collection or compromise thereof in the ordinary course of businessbusiness (and not for financing purposes);
(ks) Dispositions, by means the partial or total unwinding of trade-in, of equipment used any Swap Contract or any Cash Management Services;
(t) in order to resolve disputes that occur in the ordinary course of business, the Group Members may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(u) any Dispositions constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(v) any Group Member may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the governing body of the Subsidiary if and to the extent required by applicable law;
(w) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral or (iii) such property is exchanged for like property (without regard to any boot thereon) for use in a similar business, to the extent allowable under Section 1031 of the Code;
(x) Dispositions not otherwise permitted by this Section 6.5 so long as such equipment is replaced or substituted, substantially concurrently, the aggregate fair market value (as determined by like-equipmentthe Parent Borrower in good faith at the time of the relevant Disposition) of the assets disposed in any single transaction does not exceed the greater of (x) $10 million and (y) 10% of Trailing Four Quarter Consolidated EBITDA;
(ly) the sale foreclosure or issuance any similar action with respect to any property;
(z) any disposition of the Capital Stock of Holdings I Corpa Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Parent Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, Holdings Ior from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), Holdings II, made as part of such acquisition and in each case comprising all or a portion of the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date consideration in respect of such sale or issuanceacquisition;
(aa) any lending or other disposition of samples, including time-limited evaluation software, provided to customers or prospective customers; and (bb) any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(bb) Dispositions (i) of non-core assets acquired in connection with Permitted Acquisitions or other permitted Investments or (ii) made to obtain the approval of an anti-trust authority;
(cc) Dispositions of assets not constituting Collateral in an aggregate amount not to exceed the greater of (x) $25 million and (y) 25% of Trailing Four Quarter Consolidated EBITDA per annum;
(dd) Dispositions of Non-ABL Priority Collateral (as defined in the ABL Intercreditor Agreement) not otherwise permitted by this Section 6.5 to the extent the net proceeds thereof are applied to the First Lien Obligations (or reinvested pursuant to the definitive documentation governing any such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(cFirst Lien Obligations);
(ee) Dispositions described on Schedule 6.5; and
(mff) cancellation of Indebtedness owing to the Parent Borrower may Dispose or any Restricted Subsidiary from members of management of the German Assets Parent Borrower, any of the Parent Borrower’s direct or indirect parent companies or any of the Parent Borrower’s Restricted Subsidiaries in connection with a repurchase or redemption of Capital Stock of any of the Parent Borrower’s direct or indirect parent companies. Any Disposition of Capital Stock of any Loan Party from one Group Member to the Affiliate Borrower Ianother Group Member otherwise permitted by this Section 6.5 that results in any Subsidiary Guarantor becoming a Non-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(cLoan Party Subsidiary or an Excluded Subsidiary (pursuant to clause (a) of the Affiliate Borrower Idefinition of such term after giving effect to such Disposition) shall be deemed an Investment in a Non-B Credit AgreementLoan Party Subsidiary for purposes of (and subject to) Section 6.7 in an amount equal to the fair market value (as reasonably determined in good faith by the Parent Borrower) of such Subsidiary Guarantor prior to giving effect to such Disposition.
Appears in 1 contract
Sources: Abl Credit Agreement (Specialty Building Products, 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, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property or surplus property in the ordinary course of business;
(b) the sale of inventory (including Hydrocarbons sold as produced) for cash on ordinary trade terms in the ordinary course of businessbusiness but not the sale of a production payment; provided that no contract for the sale of Hydrocarbons shall obligate the Borrower or any of its Subsidiary to deliver Hydrocarbons at a future date without receiving full payment therefor within 90 days after delivery;
(c) Dispositions permitted by Sections 7.4(b), (c) and (dSection 6.3(b);
(d) the sale or issuance by the Borrower of the its Capital Stock so long as the provisions of Section 2.7(a) (to the extent applicable thereto) are complied with and the sale or issuance of any Subsidiary of an Applicable Party Subsidiary’s Capital Stock to such Applicable Party, the Borrower or to any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerGuarantor;
(e) the Disposition granting of other assets (other than the Affiliate Revolving Notes, the Secured Guarantor Notes, the Affiliate Borrower Loan Documents oil and gas mineral leases and the Subordinated Affiliate Notes Payable)farming out of interests in Oil and Gas Properties that have no Proved Developed Producing Reserves, provided thatin either case in the ordinary course of business, (i) such Disposition is at fair on market value, as reasonably determined by the ASOT Group Member making such Disposition, (ii) such Disposition shall not result terms and in a Material Adverse Effect, (iii) at the time of such Disposition, a certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessaryarms’ length transactions;
(f) any Recovery Event, provided, termination of Hedging Agreements;
(g) abandonment of Oil and Gas Properties not capable of producing Hydrocarbons in paying quantities in accordance with and after expiration of their primary terms; provided that the requirements of Section 2.12(c2.7(b) are complied with in connection therewith;
(g) Permitted Leases;
(h) Investments permitted by Section 7.8Dispositions of claims against customers, working interest owners, other industry partners or any other Person in connection with workouts or bankruptcy, insolvency or other similar proceedings with respect to any such Person and Dispositions of any Property received from any such Persons in connection with any such workouts, bankruptcy, insolvency or other similar proceedings;
(i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” the sale or similar arrangements in joint venture agreements discount of the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property in the ordinary course of business;
(k) Dispositions, by means of trade-in, of equipment used overdue accounts receivable arising in the ordinary course of business, so long as but only in connection with the compromise or collection thereof; provided, that, for the term of this Agreement, the aggregate original amount of all such equipment is replaced or substitutedaccounts receivable shall not exceed $1,000,000;
(j) the granting of royalty, substantially concurrently, by like-equipmentoverriding royalty and similar interests in Oil and Gas Properties that have no Proved Developed Producing Reserves in the ordinary course of business and on standard industry terms;
(k) any Disposition of any assets in connection with a Recovery Event; provided that the requirements of Section 2.7(b) are complied with in connection therewith; and
(l) the sale Disposition of other assets and the issuance of any Subsidiary’s or the Borrower’s Capital Stock for which the Loan Parties receive consideration at the time of such Disposition at least equal to the fair market value of such assets and 90% of such consideration is in the form of cash; provided that the requirements of Sections 2.7(a) and 2.7(b) are complied with in connection therewith and the terms and conditions of such Disposition or issuance shall have been approved in writing by the Administrative Agent in its Permitted Discretion; provided, further, that Dispositions of Oil and Gas Properties of the Capital Stock of Holdings I Corp, Holdings I, Holdings II, Loan Parties located in the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to Offshore Waters shall not require any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and
(m) the Borrower may Dispose approval of the German Assets to the Affiliate Borrower I-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(c) of the Affiliate Borrower I-B Credit AgreementAdministrative Agent.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property or surplus property in the ordinary course of business;
(b) the sale of inventory and other assets held for sale in the ordinary course of business;
(c) Dispositions permitted by Sections 7.4(bSection 6.4 (other than Section 6.4(b)(ii), (c) and (d);
(d) (i) the sale or issuance of the any Restricted Subsidiary’s Capital Stock (other than the Borrower’s Capital Stock) to any Loan Party or the sale or issuance of any Subsidiary Excluded Subsidiary’s Capital Stock to another Restricted Subsidiary; provided, that the Guarantors’ collective ownership interest therein is not diluted; and (ii) the sale or issuance of an Applicable Party to such Applicable Partyany Capital Stock of, or any Indebtedness or other securities of, any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerUnrestricted Subsidiary;
(e) Dispositions of receivables pursuant to factoring agreements or other similar agreements or arrangements including to a Permitted Receivables Financing Subsidiary in connection with a Permitted Receivables Financing, in each case so long as the Disposition of other assets (other than the Affiliate Revolving Notes, the Secured Guarantor Notes, the Affiliate Borrower Loan Documents and the Subordinated Affiliate Notes Payable), provided that, (i) consideration for any such Disposition is at fair market value, as reasonably determined by in the ASOT Group Member making such Disposition, (ii) such Disposition shall not result in a Material Adverse Effect, (iii) at the time form of cash or retained Capital Stock or subordinated interests of such Disposition, a certificate of a Responsible Officer shall have been delivered to Permitted Receivables Financing Subsidiary or subordinated interests in the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessaryPermitted Receivables Financing Assets being sold;
(f) any Recovery Event, provided, that the requirements Disposition of Section 2.12(c) are complied with in connection therewithcash or Cash Equivalents;
(gi) Permitted Leasesthe license or sub-license of Intellectual Property in the ordinary course of business and (ii) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any Intellectual Property;
(h) Investments permitted by the lease, sublease, license or sublicense of property as described in Section 7.86.3(i);
(i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” the Disposition of surplus or similar arrangements other property no longer used or useful in joint venture agreements the business of the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property Group Members in the ordinary course of business;
(j) so long as no Event of Default has occurred and is continuing at the time of closing thereof, the Disposition (including, for the avoidance of doubt, the Permitted English Business Sale) of other assets from and after the Closing Date so long as (i) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $4.8 million, at least 75.0% of the consideration is in the form of cash or Cash Equivalents or exchanged for other assets of comparable or greater market value or usefulness to the business of the Group Members, taken as a whole, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $9.6 million, such Disposition is made at fair value (as determined by Mid-Holdings in good faith) and (iii) 100% of the Net Cash Proceeds are applied in accordance to Section 2.14; provided, that (A) any liabilities (as shown on Mid-Holdings’ or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Mid-Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the payment in cash of the Obligations (other than contingent indemnification and reimbursement obligations as to which no claim has been asserted by the Person entitled thereto), that are assumed by the transferee with respect to the applicable Disposition and, in the case of liabilities that constitute Indebtedness, for which Mid-Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Mid-Holdings or such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value (as determined by Mid-Holdings in good faith) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that has not been converted into cash, does not exceed $6.0 million, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed for purposes of clause (j)(i) to be cash;
(k) Dispositionsthe Disposition of assets subject to or in connection with any Recovery Event;
(l) Dispositions consisting of Restricted Payments permitted by Section 6.6;
(m) Dispositions consisting of Investments permitted by Section 6.7;
(n) Dispositions consisting of Liens permitted by Section 6.3;
(o) Dispositions of assets pursuant to Sale and Leaseback Transactions permitted by Section 6.10;
(p) Dispositions of property to any Group Member; provided, by means that if the transferor of tradesuch property is a Loan Party (i) the transferee thereof must be a Loan Party (or must become a Subsidiary Guarantor substantially simultaneously with such Disposition) or (ii) to the extent constituting an Investment, such Disposition must be a permitted Investment in a Non-inLoan Party Subsidiary in accordance with Section 6.7;
(q) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(r) Dispositions of equipment used accounts receivable in connection with the collection or compromise thereof in the ordinary course of business (and not for financing purposes);
(s) the unwinding of any Hedge Agreement;
(t) in order to resolve disputes that occur in the ordinary course of business, so long as such equipment is replaced the Group Members may discount or substitutedotherwise compromise for less than the face value thereof, substantially concurrently, by like-equipmentnotes or accounts receivable;
(lu) the sale any Group Member may sell or issuance dispose of the shares of Capital Stock of Holdings I Corp, Holdings I, Holdings II, any of its Subsidiaries in order to qualify members of the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC governing body of the Subsidiary if and to any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c)extent required by applicable law; and
(mv) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the Borrower may Dispose proceeds of the German Assets such Disposition are promptly applied to the Affiliate Borrower Ipurchase price of such replacement property; provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral. Any Disposition of Capital Stock of any Loan Party from one Group Member to another Group Member otherwise permitted by this Section 6.5 that results in any Subsidiary Guarantor becoming a Non-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(cLoan Party Subsidiary or an Excluded Subsidiary (pursuant to clause (d) of the Affiliate Borrower Idefinition of such term after giving effect to such transaction) shall be deemed an Investment in a Non-B Credit AgreementLoan Party Subsidiary for purposes of (and subject to) Section 6.7 in an amount equal to the fair market value (as reasonably determined by Mid-Holdings in good faith) of such Subsidiary Guarantor prior to giving effect to such transaction.
Appears in 1 contract
Sources: Junior Lien Term Loan Credit Agreement (Forterra, 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, issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property Property (including the abandonment of Intellectual Property) in the ordinary course of business or surplus property other assets or Property not practically usable in the business of the Borrower or the applicable Subsidiary;
(b) the sale or other Disposition of inventory (including advertising, lobby promotions, CineMeetings, sponsorships and digital programming inventory) in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(ci) Dispositions permitted by Sections 7.4(b), Section 7.4(a) or (cb) and (d)ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any Subsidiary Guarantor;
(d) the sale or issuance of the any Subsidiary’s Capital Stock of to the Borrower or any Subsidiary of an Applicable Party to such Applicable Party, any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerGuarantor;
(e) Dispositions (other than leases) of equipment to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(f) Dispositions of cash and Cash Equivalents not otherwise prohibited under this Agreement;
(g) Dispositions that constitute Investments permitted under Section 7.8;
(h) Dispositions of equipment for use in “Georgia Theater Company” theaters in an amount not to exceed $250,000 per fiscal year;
(i) Dispositions by the Borrower of Holdings Common Stock in connection with the redemption of Borrower Membership Units by any member of the Borrower (other than Holdings) in accordance with Article 9 of the Borrower LLC Operating Agreement;
(j) leases, subleases and concessions of interest in real, personal and mixed Property (and dispositions of such leases, subleases and concessions) in the ordinary course of business;
(k) licenses (and dispositions or cancellations of such licenses) of Intellectual Property rights by the Borrower or any of its Subsidiaries, as licensor, in the ordinary course of business;
(l) Dispositions of receivables that are compromised or settled for less than the full amount thereof, discounted or extended, in each case in the ordinary course of business;
(m) Dispositions of equipment to a network affiliate in the ordinary course of business in connection with the sale or distribution of advertising;
(n) the Disposition of other assets (other than having a book value not to exceed $15,000,000 in the Affiliate Revolving Notesaggregate for any fiscal year of the Borrower; provided, that in one fiscal year of the Borrower during the term of this Agreement, at the Borrower’s sole option, the Secured Guarantor Notes, Borrower shall be permitted to make additional Dispositions having a book value in an aggregate amount not to exceed $30,000,000 for such fiscal year less the Affiliate Borrower Loan Documents and the Subordinated Affiliate Notes Payable), provided that, (i) such Disposition is at fair market value, as reasonably determined by the ASOT Group Member making such Disposition, (ii) such Disposition shall not result in a Material Adverse Effect, (iii) at the time amount of such Disposition, a certificate of a Responsible Officer shall have been delivered any Investments made pursuant to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained proviso set forth in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessary;7.8(u); and
(fo) any Recovery Event, provided, that the requirements of Section 2.12(c2.12(b) are complied with in connection therewith;
(g) Permitted Leases;
(h) Investments permitted by Section 7.8;
(i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” or similar arrangements in joint venture agreements of the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property in the ordinary course of business;
(k) Dispositions, by means of trade-in, of equipment used in the ordinary course of business, so long as such equipment is replaced or substituted, substantially concurrently, by like-equipment;
(l) the sale or issuance of the Capital Stock of Holdings I Corp, Holdings I, Holdings II, the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and
(m) the Borrower may Dispose of the German Assets to the Affiliate Borrower I-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(c) of the Affiliate Borrower I-B Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement
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 or worn out property or surplus property Property (including the abandonment of Intellectual Property) in the ordinary course of businessbusiness or other assets or Property not practically usable in the business of the Borrower or the applicable Subsidiary;
(b) the sale or other Disposition of inventory (including advertising, lobby promotions, CineMeetings, sponsorships and digital programming inventory) in the ordinary course of business;
(c) (i) Dispositions permitted by Sections 7.4(b), Section 7.4(a) or (cb) and (d)ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any Subsidiary Guarantor;
(d) the sale or issuance of the any Subsidiary’s Capital Stock of to the Borrower or any Subsidiary of an Applicable Party to such Applicable Party, any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerGuarantor;
(e) Dispositions (other than leases) of equipment to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(f) Dispositions of cash and Cash Equivalents not otherwise prohibited under this Agreement;
(g) Dispositions that constitute Investments permitted under Section 7.8;
(h) Dispositions of equipment for use in “Georgia Theater Company” theaters in an amount not to exceed $250,000 per fiscal year;
(i) Dispositions by the Borrower of Holdings Common Stock in connection with the redemption of Borrower Membership Units by any Founding Member in accordance with Article 9 of the Borrower LLC Operating Agreement;
(j) leases, subleases and concessions of interest in real, personal and mixed Property (and dispositions of such leases, subleases and concessions) in the ordinary course of business;
(k) licenses (and dispositions or cancellations of such licenses) of Intellectual Property rights by the Borrower or any of its Subsidiaries, as licensor, in the ordinary course of business;
(l) Dispositions of receivables that are compromised or settled for less than the full amount thereof, discounted or extended, in each case in the ordinary course of business;
(m) Dispositions of equipment to a network affiliate in the ordinary course of business in connection with the sale or distribution of advertising;
(n) the Disposition of other assets (other than having a book value not to exceed $10,000,000 in the Affiliate Revolving Notes, aggregate for any fiscal year of the Secured Guarantor Notes, the Affiliate Borrower Loan Documents and the Subordinated Affiliate Notes Payable), provided that, (i) such Disposition is at fair market value, as reasonably determined by the ASOT Group Member making such Disposition, (ii) such Disposition shall not result in a Material Adverse Effect, (iii) at the time of such Disposition, a certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessary;Borrower; and
(fo) any Recovery Event, provided, that the requirements of Section 2.12(c2.12(b) are complied with in connection therewith;
(g) Permitted Leases;
(h) Investments permitted by Section 7.8;
(i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” or similar arrangements in joint venture agreements of the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property in the ordinary course of business;
(k) Dispositions, by means of trade-in, of equipment used in the ordinary course of business, so long as such equipment is replaced or substituted, substantially concurrently, by like-equipment;
(l) the sale or issuance of the Capital Stock of Holdings I Corp, Holdings I, Holdings II, the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and
(m) the Borrower may Dispose of the German Assets to the Affiliate Borrower I-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(c) of the Affiliate Borrower I-B Credit Agreement.
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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 or worn out property or surplus property in the ordinary course of business;
(b) the sale of inventory (including Hydrocarbons sold as produced) for cash or on ordinary trade terms in the ordinary course of businessbusiness other than the sale of a production payment; provided that no contract for the sale of Hydrocarbons shall obligate the Borrower or any of its Subsidiary to deliver Hydrocarbons at a future date without receiving full payment therefor within 90 days after delivery;
(c) Dispositions permitted by Sections 7.4(b), (c) and (dSection 6.3(b);
(d) the sale or issuance by the Borrower of the its Capital Stock so long as the provisions of Section 2.7(a) (to the extent applicable thereto) are complied with and the sale or issuance of any Subsidiary of an Applicable Party Subsidiary's Capital Stock to such Applicable Party, the Borrower or to any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerGuarantor;
(e) the Disposition granting of other assets (other than the Affiliate Revolving Notes, the Secured Guarantor Notes, the Affiliate Borrower Loan Documents oil and gas mineral leases and the Subordinated Affiliate Notes Payable)farming out of interests in Oil and Gas Properties, provided thatin either case in the ordinary course of business, (i) such Disposition is at fair on market value, as reasonably determined by the ASOT Group Member making such Disposition, (ii) such Disposition shall not result terms and in a Material Adverse Effect, (iii) at the time of such Disposition, a certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c) are complied with in connection therewith, to the extent necessaryarms' length transactions;
(f) any Recovery Event, provided, termination of Hedging Agreements;
(g) abandonment of Oil and Gas Properties not capable of producing Hydrocarbons in paying quantities after expiration of their primary terms; provided that the requirements of Section 2.12(c2.7(b) are complied with in connection therewith;
(g) Permitted Leases;
(h) Investments permitted by Section 7.8Dispositions of claims against customers, working interest owners, other industry partners or any other Person in connection with workouts or bankruptcy, insolvency or other similar proceedings with respect to any such Person and Dispositions of any Property received from any such Persons in connection with any such workouts, bankruptcy, insolvency or other similar proceedings;
(i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” the sale or similar arrangements in joint venture agreements discount of the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property in the ordinary course of business;
(k) Dispositions, by means of trade-in, of equipment used overdue accounts receivable arising in the ordinary course of business, so long as such equipment is replaced but only in connection with the compromise or substitutedcollection thereof;
(j) the granting of royalty, substantially concurrently, by like-equipmentoverriding royalty and similar interests in the ordinary course of business and on standard industry terms in Oil and Gas Properties;
(k) any Disposition of any assets in connection with a Recovery Event; provided that the requirements of Section 2.7(b) are complied with in connection therewith; and
(l) the sale or Disposition of other assets and the issuance of any Subsidiary's or the Borrower's Capital Stock for which the Loan Parties receive consideration at the time of Holdings I Corp, Holdings I, Holdings II, such Disposition at least equal to the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to any Personfair market value of such assets and 90% of such consideration is in the form of cash; provided that, if such Person is not a Parent/Affiliate Guarantor on that the date requirements of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and
(mSections 2.7(a) the Borrower may Dispose of the German Assets to the Affiliate Borrower I-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(c) of the Affiliate Borrower I-B Credit Agreement.and 2.7
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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 (other than to Parent or Holdings) in the ordinary course of business of obsolete or worn out property property, or surplus real property not needed in the ordinary course of Borrower’s business;
(b) the sale of 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 in connection with the compromise or collection thereof not to exceed $2,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Sections 7.4(b), (cSection 6.4(b) and (d)Dispositions of Cash Equivalents;
(d) the sale or issuance of the any Subsidiary’s Capital Stock of to the Borrower or any Subsidiary of an Applicable Party to such Applicable Party, any Subsidiary Guarantor or any Mortgage/Mezzanine BorrowerGuarantor;
(e) the Disposition (other than to Parent or Holdings) of other assets having a fair market value not to exceed $2,000,000 in the aggregate for any fiscal year of the Borrower;
(f) the Disposition (other than to Parent or Holdings) of Towers in exchange for Towers with Total Tower Revenue at least equal in amount to the Affiliate Revolving Notesrevenue of such Disposed Towers;
(g) any Asset Sale, the Secured Guarantor Notesincluding, the Affiliate Borrower Loan Documents and the Subordinated Affiliate Notes Payable)without limitation, provided thatpursuant to Securitization Arrangements, or Recovery Event, provided, (ix) such Disposition is at fair market valuein each case, as reasonably determined by the ASOT Group Member making such Disposition, (ii) such Disposition shall not result in a Material Adverse Effect, (iii) at the time of such Disposition, a certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) after giving effect to such Disposition and (B) a certification that no Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (iv) the requirements of Section 2.12(c2.6(b) are complied with in connection therewiththerewith and (y) in the case of any Asset Sale (other than to an Unrestricted Subsidiary as part of any Securitization Arrangement), to at least 90% of the extent necessary;
(f) any Recovery Event, provided, that consideration payable for such Asset Sale is paid in cash on the requirements date of Section 2.12(c) are complied with in connection therewith;
(g) Permitted Leasessuch Disposition;
(h) Investments permitted by Dispositions of (i) non-Qualified Towers, (ii) work-in-progress related to cancelled sites, (iii) assets related to the Services Business, provided that, in each case, requirements of Section 7.8;2.6(b) are complied with; and
(i) Asset Sales pursuant to “forced-sale,” “buy-sell,” “put-call” the Disposition of Towers or similar arrangements in joint venture agreements of the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property in the ordinary course of business;
(k) Dispositions, Tower sites by means of trade-in, of equipment used in the ordinary course of business, so long as such equipment is replaced or substituted, substantially concurrently, by like-equipment;
(l) the sale or issuance of the Capital Stock of Holdings I Corp, Holdings I, Holdings II, the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and
(m) the Borrower may Dispose or any of the German Assets its Subsidiaries to the Affiliate Borrower I-B; provided that, the Affiliate Borrower I-B contemporaneously complies with Section 6.10(c) of the Affiliate Borrower I-B Credit Agreementor a Subsidiary Guarantor.
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