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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except: (a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback; (b) the sale of inventory in the ordinary course of business; (c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property; (d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary; (e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party; (f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof; (g) subject to the proviso below, unlimited Dispositions for Fair Market Value; (h) any Recovery Event; (i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries; (j) Sale and Lease-Back Transactions permitted under Section 7.10; (k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06; (l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs; (m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and (n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
Appears in 4 contracts
Samples: Credit Agreement (Harsco Corp), Amendment Agreement (Harsco Corp), Amendment to Credit Agreement (Harsco Corp)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease sale of excess or unneeded parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not constituting a sale and leasebacknecessary in the business of the Borrower or such Class I Restricted Subsidiary;
(bi) the sale Disposition of inventory in the ordinary course of businessbusiness and (ii) the granting of leases, licenses, subleases and sublicenses of real and personal property (including Intellectual Property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.04(b7.4(a); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (b) and priority of the Liens created by the Security Documents on such Property(d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Restricted Subsidiary’s Capital Stock to to, the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(if) Dispositions resulting from any taking an exchange or condemnation “swap” of any property fixed, tangible assets of the Company Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 6.9, provided further that, the fair market value of all such assets exchanged or “swapped” after the Restatement Closing Date shall not exceed $150,000,000 in the aggregate;
(g) the issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any Disposition of digital cinema equipment in connection with a Digital Cinema Equipment Lease with DCIP or Digital Projector Financing;
(j) (i) any sale or other Disposition of the type described in ASC 000-00-00 in connection with a sale and leaseback transaction otherwise permitted hereby and (ii) any Sale and Lease-Back Leaseback Transaction; provided that the aggregate fair market value of all real property Disposed of pursuant to such Sale and Leaseback Transactions permitted under Section 7.10pursuant to this clause (j)(ii) shall not exceed $300,000,000 during the term of this Agreement after the Fifth Amendment Effective Date;
(k) the Disposition of any real property subject to a sale contract on the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06Restatement Closing Date as described on Schedule 7.5(k);
(li) the sale Disposition of the Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, LLC, NCM Holdings or any holding company holding any such interest and/or (without recourseii) Disposition of receivables (and related assets) any interest in DCIP, any Unrestricted Subsidiary, any joint venture or any interest acquired pursuant to factoring or other receivables sale arrangements and similar financing programsa Permitted Business Investment, and, in each case under this Section 7.5(l), the subsequent Disposition of any consideration received pursuant to such Disposition;
(m) assignments the Disposition of cash and licenses Cash Equivalents permitted under this Agreement;
(n) Dispositions of intellectual property Property pursuant to contracts between the Borrower and the U.S. Department of Justice or the Company and its Restricted Subsidiaries in the ordinary course of businessFederal Trade Commission related to any Permitted Acquisition; and
(no) the purchase and sale or Disposition after the Restatement Closing Date of other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of assets having a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, fair market value not to exceed $25,000,000, with 500,000,000 in the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect aggregate. Certain Dispositions pursuant to subsequent changes in value. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.057.5 may give rise to mandatory prepayment obligations under Section 2.10(b).
Appears in 3 contracts
Samples: Credit Agreement (Cinemark Usa Inc /Tx), Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx)
Limitation on Disposition of Property. Dispose of any Property of Holdings or any of its Property Restricted Subsidiaries (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Restricted SubsidiarySubsidiary of Holdings, issue or sell any shares of such Restricted Subsidiary’s 's Capital Stock to any Person, except:except for, subject to compliance with the requirements of Section 2.12(c):
(a) the Disposition of (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(bi) leases, subleases and concessions and (ii) the sale of inventory inventory, in each case in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company 7.4(b) or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property7.11;
(d) the sale or issuance of (i) any Restricted Subsidiary’s 's Capital Stock to the Company or any Subsidiary Guarantor Capital Stock of Regal (other than Disqualified Stock) to Regal or in the case of any Restricted Subsidiary that is not a Wholly Owned Subsidiary Guarantor, (ii) any Capital Stock (other than Disqualified Stock) of Regal to Holdings or (iii) any other Restricted SubsidiaryCapital Stock permitted by Section 7.19;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested Disposition by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company Holdings or any of its Restricted Subsidiaries of other assets having a fair market value not to exceed $100,000,000 in the aggregate for any fiscal year of the Borrowers;
(f) any Recovery Event; or
(g) an exchange or "swap" of fixed, tangible assets of Regal or any Restricted Subsidiary of Holdings for the assets of a Person other than the Borrowers or their respective Restricted Subsidiaries; provided that (i) the assets received by Regal or such Disposition having Restricted Subsidiary will be used or useful in its respective Line of Business and (ii) Regal or such Restricted Subsidiary receives reasonable equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an aggregate Fair Market Valueexchange or "swap" with a non-Affiliate of any Loan Party, taken together with as determined by the board of directors of the applicable Loan Party); provided, further, that the fair market value of all such assets exchanged or "swapped" in any fiscal year of Regal does not exceed $100,000,000. Notwithstanding the foregoing, in the event any Collateral Disposed of by any of the Loan Parties (other Designated Non-Cash Consideration received than Dispositions made pursuant to clause (gb) that of this Section 7.5), is at that time outstandingnot replaced with Collateral of reasonably equivalent value within 364 days of such Disposition, the Borrowers shall, to the extent not to exceed $25,000,000so replaced, prepay the Loans with the Fair Market Value Net Cash Proceeds of each item such Disposition within such 364-day period. Such prepayment shall be applied in accordance with the requirements of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. For the avoidance of doubt, any issuance Section 2.12(e) as if a prepayment or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Commitment reduction had occurred under Section 7.052.12.
Appears in 3 contracts
Samples: Credit Agreement (Regal Entertainment Group), Credit Agreement (Regal Entertainment Group), Credit Agreement (Regal Cinemas Corp)
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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b); provided that promptly after 7.4(a) or (b) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions 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, adjustments 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or Disposition of other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of assets having a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, book value not to exceed $25,000,000, with 10,000,000 in 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. For the avoidance of doubt, aggregate for any issuance or sale of Capital Stock fiscal year of the Company shall not be subject to Borrower; and
(o) any Recovery Event, provided, that the restrictions set forth requirements of Section 2.12(b) are complied with in this Section 7.05connection therewith.
Appears in 2 contracts
Samples: Credit Agreement (National CineMedia, LLC), Credit Agreement (National CineMedia, 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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (iother than to the Parent, Holdings or SBA Senior Finance) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of businessbusiness of obsolete or worn out property, including the lease or sublease of excess or unneeded surplus real property not constituting a sale and leasebackneeded in the 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 $50,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition 7.4 and Dispositions of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such PropertyCash Equivalents;
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor and (ii) the sale or in the case issuance of any Restricted Subsidiary that is not a Subsidiary Guarantor, non-Loan Party Subsidiary’s Capital Stock to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(e) the Disposition (other than to the Parent, Holdings or SBA Senior Finance) of other assets having a fair market value not to exceed $50,000,000 in the aggregate for any fiscal year of the Borrower, provided that, in each case, the requirements of Section 2.7(a) are complied with;
(f) discountsthe Disposition (other than to the Parent, adjustments Holdings or forgiveness SBA Senior Finance) of accounts receivable and other contract claims Towers in exchange for Towers with Tower Cash Flow at least equal in amount to the ordinary course Tower Cash Flow of business or in connection with collection or compromise thereofsuch Disposed Towers;
(g) subject any Disposition (other than to the proviso belowParent, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company Holdings, SBA Senior Finance or any of its Restricted Subsidiaries;
their respective Subsidiaries (j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to other than the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company Borrower and its Restricted Subsidiaries in the ordinary course of business; and
(nSubsidiaries)) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; Recovery Event, provided, (x) in each case, that the requirements of Section 2.7(a) or 2.7(b), as applicable, are complied with in connection therewith and (y) in the case of a Specified any such Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by payable for such Disposition is paid in cash on the Company or date of such Restricted Subsidiary in excess Disposition;
(h) Dispositions of $10,000,000 for any individual Disposition (or series of i) Towers that are not Qualified Towers, (ii) work-in-progress related Dispositionsto cancelled sites and (iii) shall be in assets related to the form of cash or Cash EquivalentsServices Business, provided further that for purposes that, in each case, the requirements of this proviso, each of the following shall be deemed to be cash: Section 2.7(a) are complied with;
(i) the amount Disposition of any liabilities (as shown on the Company’s Towers or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed Tower sites by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries in such to the Borrower or a Subsidiary Guarantor and (ii) the Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) of Towers or Tower sites by any Subsidiary that is at not a Loan Party to any other Subsidiary that time outstandingis not a Loan Party;
(j) the scheduled Dispositions set forth on Schedule 7.5;
(k) the Disposition of any Specified Unrestricted Foreign Entity; and
(l) other Dispositions, not including of Towers or Tower sites, by the Borrower or any of its Subsidiaries; provided, that (x) the ratio of Consolidated Net Debt to exceed $25,000,000Annualized Borrower EBITDA, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without calculated on a pro forma basis, after giving effect to subsequent changes in value. For such Dispositions, would not exceed 5.50 to 1.00 and (y) Annualized Borrower EBITDA determined for the most recent fiscal quarter ended for which financial statements have been or are required to be delivered pursuant to Section 6.1 is not less than $150,000,000 (the “Minimum EBITDA”); provided that the Minimum EBITDA shall be reduced to $100,000,000 if no Term Loans (including, for the avoidance of doubt, any issuance or sale Incremental Term Loan) are outstanding on the date of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05such Disposition).
Appears in 2 contracts
Samples: Credit Agreement (Sba Communications Corp), Revolving Refinancing Amendment (Sba Communications Corp)
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary GuarantorLoan Party, all actions reasonably required by the Collateral Administrative Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor Loan Party or in the case of any Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party, to any other Restricted Subsidiary;
(e) Dispositions the sale, lease or transfer of Property or assets from (i) the Company or a Subsidiary Guarantor Loan Party to the Company or another Subsidiary GuarantorLoan Party; provided that promptly after any such Dispositionsale, lease or transfer, all actions reasonably requested required by the Collateral Administrative Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor Loan Party to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party; provided, for the purposes of subclause (iii) of this clause (e), the aggregate amount of such sales, leases or transfers shall not exceed the sum of (1) $50,000,000 in any fiscal year (the “Permitted Disposition Amount”), plus (2) all of the unused Permitted Disposition Amount from the immediately preceding fiscal year (it being agreed that any such carried over amount shall be deemed used first in such immediately subsequent fiscal year), plus (3) all of the Permitted Disposition Amount from the immediately subsequent fiscal year (it being agreed that any such allocated amount shall be deemed used last in such immediately preceding fiscal year);
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject the Disposition of other assets in any fiscal year having an aggregate fair market value not to exceed 5.5% of the proviso below, unlimited Dispositions for Fair Market ValueConsolidated Total Assets of the Company as determined as of the end of the immediately preceding fiscal year;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;; and
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph paragraphs (b) and (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
Appears in 2 contracts
Samples: Refinancing Amendment and Joinder Agreement (Verint Systems Inc), Credit Agreement (Verint Systems 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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s 's Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged worn out or surplus or is replaced property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale or lease of inventory or equipment in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition the sale or discount, in each case without recourse, of any Property Accounts Receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Propertyextent not transferred in connection with any Permitted Receivables Financing;
(d) the sale or issuance exchange of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor or specific items of equipment for replacement items of equipment in the case ordinary course of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiarybusiness which are the functional equivalent of the item of equipment so exchanged;
(e) Dispositions from permitted by Section 7.4(a) or (b);
(f) the sale or issuance of any Subsidiary's Capital Stock to the Borrower or of the Borrower to Holdings or (i) in the Company or case of a Subsidiary Guarantor Wholly Owned Subsidiary, to the Company or another Subsidiary Guarantor; provided that promptly after any which owns the remainder of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection Subsidiary's Capital Stock and priority of the Liens created by the Security Documents on such Property and assets, (ii) from in the case of a Restricted Subsidiary that is not a Subsidiary Guarantor Wholly Owned Subsidiary, pro rata to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness holders of accounts receivable and other contract claims in the ordinary course Capital Stock of business or in connection with collection or compromise thereofsuch Subsidiary;
(g) subject the Disposition of other assets having a fair market value not to exceed $500,000 in the proviso below, unlimited Dispositions aggregate for Fair Market Valueany fiscal year of the Borrower;
(h) any Disposition or Recovery Event, provided, that (i) the requirements of Section 2.12(b) are complied with in connection therewith and (ii) the aggregate amount of all such Dispositions in any fiscal year of the Borrower shall not exceed $5,000,000;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiariesassets sold pursuant to a Sale/Leaseback Transaction permitted under Section 7.11;
(j) Sale and LeaseDispositions of non-Back Transactions core assets acquired pursuant to Acquisitions or Subsidiary Acquisitions permitted under Section 7.107.8(i);
(k) Dispositions of all or any portion of the Capital Stock or assets of any Foreign Subsidiary;
(l) Dispositions (i) in connection with the Ripon Transition and (ii) of the Capital Stock of, or all or any portion of the assets of, ALSA;
(m) sales and transfers of Receivables, equipment loans and related assets (including contract rights) by the Borrower and its Subsidiaries (including the Securitization Entities) in connection with any Permitted Receivables Financing pursuant to the applicable Securitization Documentation, provided, that (i) the principal amount of cash and the purchase money notes received as consideration in any such sale or transfer (when aggregated with the cash and purchase money notes received as consideration upon all such other sales of Receivables, equipment loans and related assets during the ninety days preceding such sale or transfer) is at least equal to 75% of the aggregate face amount of all Receivables so sold or transferred on such day and during the ninety preceding days, (ii) the Borrower and its Subsidiaries may only receive such purchase money notes to the extent constituting Dispositions, Investments permitted such purchase money notes are issuable pursuant to either (x) the Securitization Documentation for the Initial Receivables Facility in effect on the Effective Date or (y) the Securitization Documentation for the Permitted Receivables Financing replacing such Initial Receivables Facility so long as the terms and conditions of purchase money notes issuable pursuant to such replacement receivables facility are not materially more disadvantageous to the Agents and the Lenders than the terms and conditions of the purchase money notes issued pursuant to the Initial Receivables Facility in effect on the Effective Date or are otherwise reasonably satisfactory to the Agents and (iii) in the event that an "Event of Default" occurs in respect of the Borrower under Section 7.07 8(k) of the Loan and Security Agreement, dated as of May 5, 1998, among Alliance Laundry Receivables Warehouse LLC, the financial institutions party thereto as lenders, and Xxxxxx Commercial Paper Inc., as agent for such lenders, or any successor or similar provision in any other Securitization Documentation with respect to any Permitted Receivables Financing, the consideration for any such sale or transfer during the continuation of any such Event of Default shall include cash at least equal to 75% of the face amount of any Receivable sold pursuant to any such sale or transfer unless otherwise approved by the Administrative Agent;
(n) Restricted Payments permitted under Section 7.067.6;
(lo) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments leases and licenses of intellectual real or personal property of the Company and its Restricted Subsidiaries (including Intellectual Property) in the ordinary course of business;
(p) Dispositions of all or any portion of the Capital Stock or assets of any Subsidiary (other than a Material Subsidiary);
(q) sales of equipment loans on a non-recourse basis to a third parties in an amount equal to at least 75% of the fair market value thereof;
(r) the sale of Accounts Receivable pursuant to arrangements customary to the industry; and
(ns) the purchase Dispositions of (i) Cash Equivalents and sale or (ii) Investments (other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthan Acquisitions); provided, however, that in to the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as extent that any of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaidforegoing constitute an Asset Sale, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations)Asset Sale shall consist of cash, (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market ValueEquivalents, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of a Subsidiary or fixed assets used or useful in the Company shall not be subject to business of the restrictions set forth in this Section 7.05Borrower and its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Laundry Corp), Credit Agreement (Alliance Laundry Corp)
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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b); provided that promptly after 7.4(a) or (b) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions 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, adjustments 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or Disposition of other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of assets having a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, book value not to exceed $25,000,000, with 10,000,000 in 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. For the avoidance of doubt, aggregate for any issuance or sale of Capital Stock fiscal year of the Company shall not be subject to Borrower; and
(o) any Recovery Event, provided, that the restrictions set forth requirements of Section 2.12(b) are complied with in this Section 7.05connection therewith.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property property that the Company Borrower (or any Restricted Subsidiary of the CompanyBorrower) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b7.4(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions the sale, lease or transfer of Property or assets from (i) the Company or a Subsidiary Guarantor Loan Party to the Company or another Subsidiary GuarantorLoan Party; provided that promptly after any such Dispositionsale, lease or transfer, all actions reasonably requested required by the Collateral Administrative Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property property and assets, or (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company Borrower or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartySubsidiary;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject the Disposition of other assets having a fair market value not to exceed 5% of the proviso below, unlimited Dispositions Consolidated Total Assets of the Borrower in the aggregate for Fair Market Valueany fiscal year of the Borrower;
(h) any Recovery Event, provided, that the requirements of Section 2.12(b) are complied with in connection therewith;
(i) Dispositions resulting from any taking or condemnation of any property of the Company Borrower or any of its Restricted Subsidiaries;
(j) Sale the lease or sublease of Real Property not constituting a sale and Lease-Back Transactions permitted under Section 7.10;leaseback; and
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company Borrower and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph paragraphs (a), (b) and (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) Loan Party shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease sale of excess or unneeded parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not constituting a sale and leasebacknecessary in the business of the Borrower or such Class I Restricted Subsidiary;
(bi) the sale Disposition of inventory in the ordinary course of businessbusiness and (ii) the granting of leases, licenses, subleases and sublicenses of real and personal property (including Intellectual Property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.04(b7.4(a); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (b) and priority of the Liens created by the Security Documents on such Property(d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Restricted Subsidiary’s Capital Stock to to, the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(if) Dispositions resulting from any taking an exchange or condemnation “swap” of any property fixed, tangible assets of the Company Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 6.9, provided further that, the fair market value of all such assets exchanged or “swapped” after the Restatement Closing Date shall not exceed $150,000,000 in the aggregate;
(g) the issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any Disposition of digital cinema equipment in connection with a Digital Cinema Equipment Lease with DCIP or Digital Projector Financing;
(j) Sale a sale or other Disposition of the type described in EITF 97-10 in connection with a sale and Lease-Back Transactions leaseback transaction otherwise permitted under Section 7.10hereby;
(k) the Disposition of any real property subject to a sale contract on the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06Restatement Closing Date as described on Schedule 7.5(k);
(li) the sale Disposition of the Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, LLC, NCM Holdings or any holding company holding any such interest and/or (without recourseii) Disposition of receivables (and related assets) any interest in DCIP, any Unrestricted Subsidiary, any joint venture or any interest acquired pursuant to factoring or other receivables sale arrangements and similar financing programsa Permitted Business Investment, and, in each case under this Section 7.5(l), the subsequent Disposition of any consideration received pursuant to such Disposition;
(m) assignments the Disposition of cash and licenses Cash Equivalents permitted under this Agreement;
(n) Dispositions of intellectual property Property pursuant to contracts between the Borrower and the U.S. Department of Justice or the Company and its Restricted Subsidiaries in the ordinary course of businessFederal Trade Commission related to any Permitted Acquisition; and
(no) the purchase and sale or Disposition after the Restatement Closing Date of other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of assets having a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, fair market value not to exceed $25,000,000, with 500,000,000 in the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect aggregate. Certain Dispositions pursuant to subsequent changes in value. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.057.5 may give rise to mandatory prepayment obligations under Section 2.10(b).
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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b7.4(a); provided that promptly after , (b) or (d) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions of cash and Cash Equivalents not otherwise prohibited under this Agreement;
(g) Dispositions that constitute Investments permitted under Section 7.8 and sale and leaseback transactions permitted by Section 7.11;
(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, adjustments 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or Disposition of other transfer (including by capital contribution) assets having a book value not to exceed $15,000,000 in the aggregate for any fiscal year of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthe Borrower; provided, that in one fiscal year of the case Borrower during the term of a Specified Dispositionthis Agreement, at the Borrower’s sole option, the Company would, immediately after giving effect Borrower shall be permitted to such Specified Disposition be make additional Dispositions having a book value in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect an aggregate amount not to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming exceed $30,000,000 for such purposes the repayment of fiscal year;
(o) any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition)Recovery Event, provided, furtherthat the requirements of Section 2.12(b) are complied with in connection therewith;
(p) Dispositions constituting the abandonment, thatcancellation, with respect non-renewal or discontinuance of use or maintenance of non-material Intellectual Property or rights relating thereto that the Borrower determines in its reasonable judgment to paragraph be desirable to the conduct of its business and not materially disadvantageous to the interests of the Lenders;
(gq) aboveany other Disposition of assets (including equity interests); provided that (i) if the total fair market value of the assets subject to such Disposition or series of related Dispositions is in excess of $5,000,000, it shall be for a fair market value, (ii) at least 75% of the total consideration for any such Disposition is in the form of cash or cash Equivalents and (iii) no Default or Event of Default then exists or will would result therefrom and from such Disposition (except if such Disposition is made pursuant to an agreement entered into at least 75% a time when no Default or Event of default exists); and
(r) any swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the business of the consideration received therefor Borrower and its Subsidiaries as a whole, as determined in good faith by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each management of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05Borrower.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of businessbusiness of obsolete or worn out property, including the lease or sublease of excess or unneeded surplus real property not constituting a sale and leasebackneeded in the 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 $1,000,000 in the aggregate;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition 7.4 and Dispositions of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such PropertyCash Equivalents;
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor and (ii) the sale or in the case issuance of any Restricted Subsidiary that is not a Subsidiary Guarantor, non-Loan Party Subsidiary’s Capital Stock to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(e) the Disposition of other assets having a fair market value not to exceed $1,000,000 in the aggregate;
(f) discounts, adjustments or forgiveness the Disposition of accounts receivable and other contract claims Towers in exchange for Towers with Tower Cash Flow at least equal in amount to the ordinary course Tower Cash Flow of business or in connection with collection or compromise thereofsuch Disposed Towers;
(g) subject to any Recovery Event, provided that the proviso belowrequirements of Section 2.7(a), unlimited Dispositions for Fair Market Valueas applicable, are complied with in connection therewith;
(h) any Recovery EventDispositions of the Distributed Antenna Network Business, provided that the requirements of Section 2.7(a) are complied with;
(i) Dispositions resulting from any taking the Disposition of Towers or condemnation of any property of Tower sites by the Company Borrower or any of its Restricted SubsidiariesSubsidiaries to the Borrower or a Subsidiary Guarantor and (ii) the Disposition of Towers or Tower sites by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(j) Sale the Disposition of the Capital Stock of Mobilitie Guatemala y Compania Limitada and Lease-Back Transactions permitted under Section 7.10;Mobilitie Nicaragua y Compania Limitada described on Schedule 7.5; and
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale of other assets; provided that (without recoursei) of receivables such assets are sold at fair market value, (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(nii) the purchase price for such assets shall be paid in cash substantially concurrently with the consummation of such sale, (iii) immediately before and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of on a Specified Disposition, the Company would, immediately pro forma basis after giving effect to such Specified Disposition thereto the Borrower shall be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period Consolidated Leverage Ratio and (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (iiv) the amount requirements of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes theretoSection 2.7(a) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05complied with.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s 's Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(bi) the sale of inventory in the ordinary course of businessbusiness and (ii) the leasing, as lessor, of facilities in the ordinary course of business under leases providing to the lessor lease income that contributes to Consolidated EBITDA an amount substantially equivalent to the contribution of such facilities to Consolidated EBITDA if such facilities were operated by the Borrower;
(c) Dispositions permitted by Section 7.04(b7.4(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s 's Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims Disposition in the ordinary course of business of Cash Equivalents and other investment securities;
(f) the Disposition of Property of the Borrower or any Subsidiary in connection with collection an asset swap; provided, (i) that the amount of Consolidated EBITDA attributable to any Property so Disposed of by the Borrower or compromise thereofany Subsidiary, for the period of four consecutive fiscal quarters most recently ended prior to the date of such Disposition, does not exceed $5,000,000 and (ii) the amount of Consolidated EBITDA attributable to the Property acquired by the Borrower or any Subsidiary in such asset swap, for the period of four consecutive fiscal quarters most recently ended prior to the date of such Disposition, is not less than 90% of the Consolidated EBITDA for such period of the asset swapped by the Borrower or such Subsidiary;
(g) subject the Disposition of Transferred Properties of the Borrower and its Subsidiaries in transactions resulting in the receipt by the Borrower and its Subsidiaries of the fair market value of the Transferred Properties, it being understood that the Disposition of the Transferred Properties for the purchase price contained in option purchase agreements existing on June 28, 2002 and previously disclosed to the proviso below, unlimited Dispositions for Fair Market ValueAdministrative Agent shall constitute fair market value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation the Disposition of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring notes or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition non-cash consideration received as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged consideration in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received Dispositions permitted pursuant to clause (g) of this Section;
(i) the Disposition of other assets in sales for fair market value; provided, that (i) the aggregate amount of Net Cash Proceeds of such Dispositions shall not exceed, while this Agreement is at that time outstandingin effect (A) $60,000,000, not to exceed $25,000,000so long as, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received of any Disposition pursuant to this clause (a), the Consolidated Senior Secured Leverage Ratio is not at least 0.50 lower than the maximum Consolidated Senior Secured Leverage Ratio permitted pursuant to Section 7.1(b) at the time of such Disposition or (B) $100,000,000, so long as, at the time of any Disposition pursuant to this clause (b), the Consolidated Senior Secured Leverage Ratio is at least 0.50 lower than the maximum Consolidated Senior Secured Leverage Ratio permitted pursuant to Section 7.1(b) at the time of such Disposition and without giving effect to subsequent changes in value. For the avoidance of doubt, any issuance or sale of Capital Stock (ii) not more than 75% of the Company Net Cash Proceeds of all such Dispositions shall not be attributable to Dispositions of Properties subject to the restrictions set forth Existing Mortgages; and
(j) any Recovery Event, provided, that the requirements of Section 2.7(b) are complied with in this Section 7.05connection therewith.
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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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;
(ci) Dispositions permitted by Section 7.04(b); provided that promptly after 7.4(a) or (b) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions 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, adjustments 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or Disposition of other transfer (including by capital contribution) assets having a book value not to exceed $15,000,000 in the aggregate for any fiscal year of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthe Borrower; provided, that in one fiscal year of the case Borrower during the term of a Specified Dispositionthis Agreement, at the Borrower’s sole option, the Company would, immediately after giving effect Borrower shall be permitted to such Specified Disposition be make additional Dispositions having a book value in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect an aggregate amount not to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming exceed $30,000,000 for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) fiscal year less the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated Investments made pursuant to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions proviso set forth in this Section 7.057.8(u); and
(o) any Recovery Event, provided, that the requirements of Section 2.12(b) are complied with in connection therewith.
Appears in 1 contract
Samples: 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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b7.4(a); provided that promptly after , (b) or (d) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or or, in the case of any Restricted Subsidiary that is not a Subsidiary GuarantorExcluded Subsidiary, to any other Restricted Subsidiary that is the parent company of such Excluded Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions of cash and Cash Equivalents not otherwise prohibited under this Agreement;
(g) Dispositions that constitute, adjustments as applicable, Restricted Payments permitted under Section 7.6 and/or 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale Disposition of other assets (other than Capital Stock of a Wholly Owned Subsidiary unless such Disposition is of all of the Capital Stock of such Subsidiary or unless such Disposition does not result in any Subsidiary Guaranty being released other transfer (including by capital contributionthan in respect of a Bona Fide Joint Venture otherwise permitted hereunder) having a book value not to exceed $15,000,000 in the aggregate for any fiscal year of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthe Borrower; provided, that after the Q4 End Date, in one fiscal year of the case Borrower during the term of a Specified Dispositionthis Agreement, at the Borrower’s sole option, the Company would, immediately after giving effect Borrower shall be permitted to such Specified Disposition be make additional Dispositions having a book value in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect an aggregate amount not to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming exceed $30,000,000 for such purposes the repayment of fiscal year;
(o) any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition)Recovery Event, provided, furtherthat the requirements of the Existing Credit Agreement are complied with in connection therewith;
(p) Dispositions constituting the abandonment, thatcancellation, with respect non-renewal or discontinuance of use or maintenance of non-material Intellectual Property or rights relating thereto that the Borrower determines in its reasonable judgment to paragraph be desirable to the conduct of its business and not materially disadvantageous to the interests of the Lenders;
(gq) aboveany other Disposition of assets (including equity interests); provided, that (i) if the total fair market value of the assets subject to such Disposition or series of related Dispositions is in excess of $5,000,000, it shall be for a fair market value, (ii) at least 75% of the total consideration for any such Disposition is in the form of cash or cash Equivalents and (iii) no Default or Event of Default then exists or will would result therefrom and from such Disposition (except if such Disposition is made pursuant to an agreement entered into at least 75% a time when no Default or Event of Default exists);
(r) any swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the business of the consideration received therefor Borrower and its Subsidiaries as a whole, as determined in good faith by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each management of the following shall be deemed to be cash: Borrower; and
(is) sale and leaseback transactions permitted by Section 7.11, provided, that the amount requirements of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes theretoSection 2.12(b) that are assumed by the transferee of any such assets or are otherwise cancelled complied with in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05therewith.
Appears in 1 contract
Samples: Revolving Credit Agreement (National CineMedia, 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 Restricted Subsidiary, or issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of (i) cash, Cash Equivalents business of obsolete or Investment Grade Securities worn out Property or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in the business of the Company provided that either:
(i) such Disposition could not reasonably be expected to materially adversely affect either Project or any of the Project Security; or
(ii) with respect to Property Disposed of by reason of its businessobsolescence or worn out condition, has become obsoleteprior to or promptly following such Disposition any such Property shall be replaced (if replacement is in fact necessary or desirable) with other Property of substantially equal or greater utility and similar use and either (A) a value at least substantially equal to that of the replaced Property when first acquired or (B) substantially equal or greater quality and, damaged if applicable, prestige and calibre as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and the Company shall promptly subject such replacement property to the Lien of the Security Documents in favour of the Secured Parties of at least the same priority as Property so replaced, provided further that, in the case of any Asset Sale permitted pursuant to this sub-paragraph 5(a)(ii):
(A) the Company may deliver a Reinvestment Notice in respect thereof;
(B) any remaining Net Cash Proceeds of such Asset Sale (and any Reinvestment Prepayment Amount) are applied towards prepayment of the Advances under the Term Loan Facilities in accordance with paragraph 3 of Schedule 9 (Mandatory Prepayment); and
(C) the aggregate amount of Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to a Reinvestment Notice delivered under sub-paragraph (A) shall not exceed USD10,000,000 or surplus or is replaced its equivalent in any Fiscal Year;
(b) the Disposition of cash (in each case in transactions otherwise permitted under this Agreement), Investments permitted pursuant to paragraph 8 of this Part B, inventory (in the ordinary course of business), including receivables (in connection with the lease collection thereof and otherwise as customary in business activities of the type conducted by the Company) and cash or sublease non-cash prizes and other complimentary items for customers customary in business activities of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in type conducted by the ordinary course of businessCompany;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiarythe Company’s Capital Stock (other than Disqualified Stock) to its direct Shareholders provided that such Capital Stock is fully paid upon such issuance (or, as the case may be, sale) and is subject to the Liens created under the Company Share Pledge;
(d) in addition to other Dispositions allowed under this paragraph 5, Dispositions of Property having a fair market value not in excess of USD5,000,000 or any Subsidiary Guarantor or its equivalent in the case of aggregate in any Restricted Subsidiary Fiscal Year following the Construction Completion Date; provided that is not a Subsidiary Guarantor, (i) the consideration received for such Property shall be in an amount at least equal to any other Restricted Subsidiarythe fair market value thereof; and (ii) the sole consideration received shall be cash;
(e) Dispositions from (i) subject to compliance with paragraph 23 of this Part B, the Company may enter into any leases or a Subsidiary Guarantor licences with respect to any space on or within the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartySite Facilities;
(f) discounts, adjustments or forgiveness the incurrence of accounts receivable and other contract claims in the ordinary course Liens permitted under paragraph 3 of business or in connection with collection or compromise thereofthis Part B;
(g) subject to any Event of Eminent Domain provided that the proviso below, unlimited Dispositions for Fair Market Valuerequirements of Schedule 9 (Mandatory Prepayment) are complied with in connection therewith;
(h) any Recovery Event;subject to compliance with paragraph 17 of this Part B, the Company may enter into Subconcessions; or
(i) Dispositions resulting from any taking or condemnation of Disposition not falling within any property of the Company or any preceding sub-paragraphs of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to this paragraph 5 made with the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property prior written consent of the Company and its Restricted Subsidiaries in the ordinary course of business; and
Intercreditor Agent (n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed consent not to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligationsunreasonably withheld), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease sale of excess or unneeded parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not constituting a sale and leasebacknecessary in the business of the Borrower or such Class I Restricted Subsidiary;
(bi) the sale Disposition of inventory in the ordinary course of businessbusiness and (ii) the granting of leases, licenses, subleases and sublicenses of real and personal property (including Intellectual Property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.04(b7.4(a); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (b) and priority of the Liens created by the Security Documents on such Property(d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Restricted Subsidiary’s Capital Stock to to, the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(if) Dispositions resulting from any taking an exchange or condemnation “swap” of any property fixed, tangible assets of the Company Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries;
; provided that, (ji) Sale the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and Lease-Back Transactions permitted under Section 7.10;
its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (kii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property reasonable satisfaction of the Company and its Restricted Subsidiaries in the ordinary course of business; and
Administrative Agent (n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; providedor, that in the case of an exchange or “swap” with a Specified Dispositionnon-Affiliate of any Loan Party, as determined by the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as board of directors of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company Borrower or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Class I Restricted Subsidiary’s most recent balance sheet or in , as the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents receivedcase may be) and (iii) any Designated Non-Cash Consideration if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Company Borrower or any of its Restricted Subsidiaries such Class I Subsidiary in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received exchange or “swap” pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.to
Appears in 1 contract
Limitation on Disposition of Property. Dispose (and ensure no other Obligor shall 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 Restricted Subsidiary, or issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value on arm’s length commercial terms in the ordinary course of (i) cash, Cash Equivalents business of any Property or Investment Grade Securities obsolete or (ii) other worn out Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is Property no longer used or useful in the business of the Company or the Obligor provided that such Disposition could not reasonably be expected to materially adversely affect either Project or any of the Project Security and either:
(i) the Net Cash Proceeds from the disposal of all such Property (excluding shares in any Obligor) do not exceed in aggregate an amount equal to USD50,000,000 or its businessequivalent in any Fiscal Year when taken together with any other Net Cash Proceeds received by the Company or any other Obligor in respect of any Asset Sale in that Fiscal Year; or
(ii) where such Net Cash Proceeds referred to in sub-paragraph (i) above exceed in aggregate an amount equal to USD50,000,000 or its equivalent in any Fiscal Year (when taken together with any other Net Cash Proceeds received by the Company or any other Obligor in respect of any Asset Sale in that Fiscal Year), has become obsoletesuch Net Cash Proceeds are reinvested within 12 months of receipt in assets used by the Company or any other Obligor in the conduct of its Permitted Business (and pending such reinvestment are deposited and retained in an Account) and, damaged or surplus or is replaced if such Net Cash Proceeds are not so reinvested within 12 months of receipt, are applied in mandatory prepayment of the Advances pursuant to paragraph 2 of Schedule 9 (Mandatory Prepayment);
(b) the Disposition of cash (in each case in transactions otherwise permitted under this Agreement), Investments permitted pursuant to paragraph 8 of this Part B, inventory (in the ordinary course of business), including receivables (in connection with the lease collection thereof and otherwise as customary in business activities of the type conducted by the Company) and cash or sublease non-cash prizes and other complimentary items for customers customary in business activities of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in type conducted by the ordinary course of businessCompany;
(c) Dispositions permitted by Section 7.04(b); the sale or issuance of the Company’s or any other Obligor’s Capital Stock (other than Disqualified Stock) to its direct Shareholders provided that promptly after any such Disposition of any Property Capital Stock is fully paid upon such issuance (or, as the case may be, sale) and is subject to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by under the Security Company Share Pledge or such other Liens created under the Senior Finance Documents on with regard to such Propertyother Obligor’s Capital Stock;
(d) the sale Company may enter into any leases or issuance of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, licences with respect to any other Restricted Subsidiaryspace on or within the Site Facilities where the entry into of such leases or licences is permitted by the terms of the Senior Finance Documents;
(e) Dispositions from any Property purchased using the Company’s Subconcession proceeds (i) which is neither comprised in any Project nor necessary or desirable to ensure the Company or a Subsidiary Guarantor full benefit of any Project to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartyCompany);
(f) discounts, adjustments any Property associated with an Excluded Subsidiary or forgiveness Excluded Projects (which is neither comprised in any Project nor necessary or desirable to ensure the full benefit of accounts receivable and other contract claims in any Project to the ordinary course of business or in connection with collection or compromise thereofCompany);
(g) subject any Property associated with Resort Management Agreements (which is neither comprised in any Project nor necessary or desirable to ensure the full benefit of any Project to the proviso below, unlimited Dispositions for Fair Market ValueCompany);
(h) any Recovery Eventthe incurrence of Liens permitted under paragraph 3 of this Part B;
(i) Dispositions resulting from any taking or condemnation Event of any property Eminent Domain provided that the requirements of the Company or any of its Restricted SubsidiariesSchedule 9 (Mandatory Prepayment) are complied with in connection therewith;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;subject to compliance with paragraph 17 of this Part B, the Company may enter into Subconcessions; or
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property any Disposition not falling within any of the Company and its Restricted Subsidiaries in the ordinary course preceding sub-paragraphs of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance this paragraph 5 made with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as prior written consent of the last day of the most recently ended Test Period Intercreditor Agent (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed consent not to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligationsunreasonably withheld), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (iother than to the Parent, Holdings or SBA Senior Finance) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of businessbusiness of obsolete or worn out property, including the lease or sublease of excess or unneeded surplus real property not constituting a sale and leasebackneeded in the 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 $1,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition 7.4 and Dispositions of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such PropertyCash Equivalents;
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor and (ii) the sale or in the case issuance of any Restricted Subsidiary that is not a Subsidiary Guarantor, non-Loan Party Subsidiary’s Capital Stock to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(e) the Disposition (other than to the Parent, Holdings or SBA Senior Finance) 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) discountsthe Disposition (other than to the Parent, adjustments Holdings or forgiveness SBA Senior Finance) of accounts receivable and other contract claims Towers in exchange for Towers with Tower Cash Flow at least equal in amount to the ordinary course Tower Cash Flow of business or in connection with collection or compromise thereofsuch Disposed Towers;
(g) subject any Disposition (other than to the proviso belowParent, unlimited Dispositions Holdings, SBA Senior Finance or any of their respective Subsidiaries (other than the Borrower and its Subsidiaries)) or Recovery Event, provided, (x) in each case, that the requirements of Section 2.7(a) or 2.7(b), as applicable, are complied with in connection therewith and (y) in the case of any such Disposition, at least 90% of the consideration payable for Fair Market Valuesuch Disposition is paid in cash on the date of such Disposition;
(h) any Recovery EventDispositions of (i) Towers that are not Qualified Towers, (ii) work-in-progress related to cancelled sites and (iii) assets related to the Services Business, provided that, in each case, the requirements of Section 2.7(a) are complied with;
(i) Dispositions resulting from any taking the Disposition of Towers or condemnation of any property of Tower sites by the Company Borrower or any of its Restricted SubsidiariesSubsidiaries to the Borrower or a Subsidiary Guarantor and (ii) the Disposition of Towers or Tower sites by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(j) Sale and Lease-Back Transactions permitted under Section 7.10the scheduled Dispositions set forth on Schedule 7.5;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;Disposition of any Specified Unrestricted Foreign Entity; and
(l) the sale (without recourse) Disposition of receivables (and related assets) pursuant to factoring Towers or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses Tower sites by the Borrower or any of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization FinancingSubsidiaries; provided, that in (x) the case ratio of Consolidated Total Debt to Annualized Borrower EBITDA, calculated on a Specified Dispositionpro forma basis, the Company would, immediately after giving effect to such Specified Disposition be in compliance with Dispositions and assuming that the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as aggregate amount of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) then outstanding Revolving Credit Loans equals the amount of any liabilities the aggregate Revolving Credit Commitments at such time, would not exceed 5.00 to 1.00 and (as shown on y) Annualized Borrower EBITDA determined for the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets fiscal quarter ended for which financial statements have been or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated required to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received be delivered pursuant to clause Section 6.1 is not less than $150,000,000 (g) the “Minimum EBITDA”); provided that is at that time outstandingthe Minimum EBITDA shall be reduced to $100,000,000 if no Term Loans (including, not to exceed $25,000,000, 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. For for the avoidance of doubt, any issuance or sale Incremental Term Loan) are outstanding on the date of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05such Disposition).
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged worn out or surplus or is replaced property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale or lease of inventory or equipment in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition the sale or discount, in each case without recourse, of any Property Accounts Receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Propertyextent not transferred in connection with any Permitted Receivables Financing;
(d) the sale or exchange of specific items of equipment for replacement items of equipment in the ordinary course of business which are the functional equivalent of the item of equipment so exchanged;
(e) Dispositions permitted by Section 7.4(a) or (b);
(f) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor of the Borrower to Holdings or (i) in the case of any Restricted a Wholly Owned Subsidiary, to the Subsidiary which owns the remainder of such Subsidiary’s Capital Stock and (ii) in the case of a Subsidiary that is not a Subsidiary GuarantorWholly Owned Subsidiary, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor pro rata to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority holders of the Liens created by the Security Documents on Capital Stock of such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereofSubsidiary;
(g) subject the Disposition of other assets having a fair market value not to exceed $500,000 in the proviso below, unlimited Dispositions aggregate for Fair Market Valueany fiscal year of the Borrower;
(h) any Disposition or Recovery Event, provided, that (i) the requirements of Section 2.12(b) are complied with in connection therewith and (ii) the aggregate amount of all such Dispositions in any fiscal year of the Borrower shall not exceed $5,000,000;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiariesassets sold pursuant to a Sale/Leaseback Transaction permitted under Section 7.11;
(j) Sale and LeaseDispositions of non-Back Transactions core assets acquired pursuant to Acquisitions or Subsidiary Acquisitions permitted under Section 7.107.8(i);
(k) Dispositions of all or any portion of the Capital Stock or assets of any Foreign Subsidiary;
(l) [Intentionally Omitted]
(m) sales and transfers of Receivables, equipment loans and related assets (including contract rights) by the Borrower and its Subsidiaries (including the Securitization Entities) in connection with any Permitted Receivables Financing pursuant to the applicable Securitization Documentation, provided, that (i) the principal amount of cash and the purchase money notes received as consideration in any such sale or transfer (when aggregated with the cash and purchase money notes received as consideration upon all such other sales of Receivables, equipment loans and related assets during the ninety days preceding such sale or transfer) is at least equal to 75% of the aggregate face amount of all Receivables so sold or transferred on such day and during the ninety preceding days, (ii) the Borrower and its Subsidiaries may only receive such purchase money notes to the extent constituting Dispositions, Investments permitted such purchase money notes are issuable pursuant to either (x) the Securitization Documentation for the Existing Receivables Facility in effect on the Effective Date or (y) the Securitization Documentation for the Permitted Receivables Financing replacing such Existing Receivables Facility so long as the terms and conditions of purchase money notes issuable pursuant to such replacement receivables facility are not materially more disadvantageous to the Administrative Agent and the Lenders than the terms and conditions of the purchase money notes issued pursuant to the Existing Receivables Facility in effect on the Effective Date or are otherwise reasonably satisfactory to the Administrative Agent and (iii) in the event that an “Event of Default” occurs in respect of the Borrower under Section 7.07 8(k) of the Loan and Security Agreement, dated as of May 5, 1998, among Alliance Laundry Receivables Warehouse LLC, the financial institutions party thereto as lenders, and Xxxxxx Commercial Paper Inc., as agent for such lenders, or any successor or similar provision in any other Securitization Documentation with respect to any Permitted Receivables Financing, the consideration for any such sale or transfer during the continuation of any such Event of Default shall include cash at least equal to 75% of the face amount of any Receivable sold pursuant to any such sale or transfer unless otherwise approved by the Administrative Agent;
(n) Restricted Payments permitted under Section 7.067.6;
(lo) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments leases and licenses of intellectual real or personal property of the Company and its Restricted Subsidiaries (including Intellectual Property) in the ordinary course of business;
(p) Dispositions of all or any portion of the Capital Stock or assets of any Subsidiary (other than a Material Subsidiary);
(q) sales of equipment loans on a non-recourse basis to a third parties in an amount equal to at least 75% of the fair market value thereof;
(r) the sale of Accounts Receivable pursuant to arrangements customary to the industry;
(s) Dispositions of (i) Cash Equivalents and (ii) Investments (other than Acquisitions); and
(nt) the purchase and sale abandonment or other transfer (including by capital contribution) Disposition of Securitization Assets patents, trademarks or interests therein pursuant other Intellectual Property that are, in the reasonable judgment of the Borrower, no longer economically practicable to any Permitted Securitization Financing; maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole. provided, however, that in to the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as extent that any of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaidforegoing constitute an Asset Sale, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations)Asset Sale shall consist of cash, (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market ValueEquivalents, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of a Subsidiary or fixed assets used or useful in the Company shall not be subject to business of the restrictions set forth in this Section 7.05Borrower and its Subsidiaries.
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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b7.4(a); provided that promptly after , (b) or (d) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or or, in the case of any Restricted Subsidiary that is not a Subsidiary GuarantorExcluded Subsidiary, to any other Restricted Subsidiary that is the parent company of such Excluded Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions of cash and Cash Equivalents not otherwise prohibited under this Agreement;
(g) Dispositions that constitute, adjustments as applicable, Restricted Payments permitted under Section 7.6 and/or Investments permitted under Section 7.8 and sale and leaseback transactions permitted by Section 7.11;
(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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale Disposition of other assets (other than Capital Stock of a Wholly Owned Subsidiary unless such Disposition is of all of the Capital Stock of such Subsidiary or unless such Disposition does not result in any Subsidiary Guaranty being released other transfer (including by capital contributionthan in respect of a Bona Fide Joint Venture otherwise permitted hereunder) having a book value not to exceed $15,000,000 in the aggregate for any fiscal year of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthe Borrower; provided, that after the Q3 End Date, in one fiscal year of the case Borrower during the term of a Specified Dispositionthis Agreement, at the Borrower’s sole option, the Company would, immediately after giving effect Borrower shall be permitted to such Specified Disposition be make additional Dispositions having a book value in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect an aggregate amount not to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming exceed $30,000,000 for such purposes the repayment of fiscal year;
(o) any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition)Recovery Event, provided, furtherthat the requirements of Section 2.12(b) are complied with in connection therewith;
(p) Dispositions constituting the abandonment, thatcancellation, with respect non-renewal or discontinuance of use or maintenance of non-material Intellectual Property or rights relating thereto that the Borrower determines in its reasonable judgment to paragraph be desirable to the conduct of its business and not materially disadvantageous to the interests of the Lenders;
(gq) aboveany other Disposition of assets (including equity interests); provided, that (i) if the total fair market value of the assets subject to such Disposition or series of related Dispositions is in excess of $5,000,000, it shall be for a fair market value, (ii) at least 75% of the total consideration for any such Disposition is in the form of cash or cash Equivalents and (iii) no Default or Event of Default then exists or will would result therefrom and from such Disposition (except if such Disposition is made pursuant to an agreement entered into at least 75% a time when no Default or Event of defaultDefault exists); and
(r) any swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the business of the consideration received therefor Borrower and its Subsidiaries as a whole, as determined in good faith by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each management of the following shall be deemed to be cash: Borrower.; and
(is) sale and leaseback transactions permitted by Section 7.11, provided, that the amount requirements of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes theretoSection 2.12(b) that are assumed by the transferee of any such assets or are otherwise cancelled complied with in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05therewith.
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s 's Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease sale of excess or unneeded adjacent parcels of real property not constituting a sale and leasebacknecessary in the business of the Borrower or any Class I Restricted Subsidiary;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b7.4(a); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (b)(i), (c), (e) and priority of the Liens created by the Security Documents on such Property(f) and Sections 7.6 and 7.8;
(d) the sale or issuance of any Restricted Subsidiary’s 's Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(if) Dispositions resulting from any taking an exchange or condemnation "swap" of any property fixed, tangible assets of the Company Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or "swap" with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or "swap" constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or "swap" pursuant to Section 6.9, provided further that, the fair market value of all such assets exchanged or "swapped" shall not exceed $150,000,000 during the term of this Agreement;
(g) the issuance and sale of directors' qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any sale and leaseback transaction permitted by Section 7.11;
(j) Sale a sale or other Disposition of the type described in EITF 97-10 in connection with a sale and Lease-Back Transactions leaseback transaction otherwise permitted under Section 7.10hereby;
(k) the Disposition of any real property subject to a sale contract on the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06Effective Date as described on Schedule 7.5(k);
(l) the issuance and sale of Capital Stock of Cinemark Mexico (without recourseUSA), Inc. in connection with (i) the exercise of options for up to 1% (on a fully-diluted basis) of receivables the Capital Stock of Cinemark Mexico (USA), Inc. and related assets(ii) pursuant to factoring or other receivables sale arrangements and similar financing programsthe exercise of conversion rights existing on the Effective Date;
(m) assignments and licenses the Disposition of intellectual property other assets having a fair market value not to exceed $250,000,000 during the term of the Company and its Restricted Subsidiaries in the ordinary course of businessthis Agreement; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or and Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in permitted under this Section 7.05Agreement.
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 (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory and other assets held for sale in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b6.4 (other than Section 6.4(b)(ii); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property);
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company US Borrower or any Subsidiary Guarantor other Loan Party or in the case sale or issuance of any Excluded Subsidiary’s (other than the Canadian Borrower’s) Capital Stock to another Restricted Subsidiary Subsidiary; provided that any Guarantor’s ownership interest therein is not a Subsidiary Guarantordiluted; and (ii) the sale or issuance of any Capital Stock of, to or any Indebtedness or other Restricted securities of, any Unrestricted Subsidiary;
(e) Dispositions from (i) the Company of receivables pursuant to factoring agreements or a Subsidiary Guarantor to the Company other similar agreements or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party arrangements including to a Restricted Permitted Receivables Financing Subsidiary that in connection with a Permitted Receivables Financing, in each case so long as the consideration for such Dispositions is not a Loan Partyin the form of cash or retained equity or subordinated interests in the Permitted Receivables Financing Assets being sold;
(f) discounts, adjustments the Disposition of cash or forgiveness Cash Equivalents;
(i) the license or sub-license of accounts receivable and other contract claims Intellectual Property in the ordinary course of business and (ii) the lapse or abandonment in connection with collection the ordinary course of business of any registrations or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions applications for Fair Market Valueregistration of any Intellectual Property;
(h) any Recovery Eventthe lease, sublease, license or sublicense of property as described in Section 6.3(i);
(i) Dispositions resulting from any taking the Disposition of surplus or condemnation of any other property no longer used or useful in the business of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company US Borrower and its Restricted Subsidiaries in the ordinary course of business; and;
(nj) so long as no Event of Default has occurred and is continuing at the time of closing thereof or at the time the related purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Dispositionagreement is entered into, the Company would, immediately Disposition of other assets from and after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition Closing Date so long as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, i) with respect to paragraph any Disposition pursuant to this clause (gi) abovefor a purchase price in excess of $2,000,000, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be is in the form of cash or Cash Equivalents, provided further that Equivalents or exchanged for purposes other assets of this proviso, each comparable or greater market value or usefulness to the business of the following shall be deemed US Borrower and its Restricted Subsidiaries, taken as a whole, (ii) with respect to be cash: any Disposition pursuant to this clause (ij) for a purchase price in excess of $4,000,000, such sale, transfer or disposition is made at fair value (as determined by the amount US Borrower 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 the CompanyUS Borrower’s or any such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the notes footnotes thereto) of the US 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 of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated respect to the Obligations)applicable Disposition and for which the US Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (iiB) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (iiiC) any Designated Non-Cash Consideration received by the Company or any in respect of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Valuefair market value (as determined by the US Borrower in good faith) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (gC) that is at that time outstanding, does not to exceed $25,000,0005,000,000, with the Fair Market Value 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. For , shall be deemed for purposes of clause (j)(i) to be cash and (iv) that the avoidance aggregate gross proceeds of doubtall Dispositions in reliance upon this clause (j) shall not exceed, in any issuance fiscal year of the US Borrower, the greater of $50,000,000 and 10% of Total Assets (determined as of the end of the immediately preceding fiscal year); provided that for any given fiscal year this limitation may be increased by the unused amount for the previous fiscal year and, in the event of any such carryover, Dispositions in such fiscal year will be deducted first from the carried over amount;
(k) the Disposition of assets subject to or sale 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 the US Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the extent constituting an Investment, such Disposition must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party 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 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, the US Borrower and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(u) the US Borrower or any Restricted Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Company governing body of the Subsidiary if and to the extent required by applicable law;
(v) 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 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 not constitute Collateral; and
(w) the sale or disposition, within 360 days after the date of a Permitted Acquisition, of (i) any portion of a business or operations acquired in a Permitted Acquisition, that is, in the judgment of the US Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Holdings, the US Borrower or any Restricted Subsidiary taken as a whole or (ii) solely to the extent required by any Governmental Authority pursuant to applicable anti-trust law or other similar Requirement of Law in connection with any Permitted Acquisition, any other portion of a business or operations of Holdings, the US Borrower and the Restricted Subsidiaries, in each case, provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the US Borrower), (y) no Event of Default has occurred and is continuing or would result from such disposition and (z) at least 75% of the purchase price for all property subject to such Asset Sale shall be paid to Holdings, the restrictions set forth US Borrower or any Restricted Subsidiary solely in this Section 7.05cash and Cash Equivalents.
Appears in 1 contract
Samples: First Lien Credit Agreement (Continental 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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (iother than to the Parent, Holdings or SBA Senior Finance) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of businessbusiness of obsolete or worn out property, including the lease or sublease of excess or unneeded surplus real property not constituting a sale and leasebackneeded in the 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 $1,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition 7.4(b) and Dispositions of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such PropertyCash Equivalents;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor Guarantor;
(e) the Disposition (other than to the Parent, Holdings or SBA Senior Finance) 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) the Disposition (other than to the Parent, Holdings or SBA Senior Finance) of Towers in exchange for Towers with Tower Cash Flow at least equal in amount to the Tower Cash Flow of such Disposed Towers;
(g) any Disposition (other than to the Parent, Holdings, SBA Senior Finance or any of their respective Subsidiaries (other than the Borrower and its Subsidiaries)) or Recovery Event, provided, (x) in each case, that the requirements of Section 2.7(a) or 2.7(b), as applicable, are complied with in connection therewith and (y) in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority at least 90% of the Liens created by consideration payable for such Disposition is paid in cash on the Security Documents on date of such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market ValueDisposition;
(h) any Recovery Event;Dispositions of (i) Towers that are not Qualified Towers, (ii) work-in-progress related to cancelled sites and (iii) assets related to the Services Business, provided that, in each case, the requirements of Section 2.7(a) are complied with; and
(i) Dispositions resulting from any taking the Disposition of Towers or condemnation of any property of Tower sites by the Company Borrower or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) Subsidiaries to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring Borrower or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05Guarantor.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary GuarantorLoan Party, all actions reasonably required by the Collateral Administrative Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor Loan Party or in the case of any Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party, to any other Restricted Subsidiary;
(e) Dispositions the sale, lease or transfer of Property or assets from (i) the Company or a Subsidiary Guarantor Loan Party to the Company or another Subsidiary GuarantorLoan Party; provided that promptly after any such Dispositionsale, lease or transfer, all actions reasonably requested required by the Collateral Administrative Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, or (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor Loan Party to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartySubsidiary;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject the Disposition of other assets in any fiscal year having an aggregate fair market value not to exceed 5% of the proviso below, unlimited Dispositions for Fair Market ValueConsolidated Total Assets of the Company as determined as of the end of the immediately preceding fiscal year;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;; and
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph paragraphs (b) and (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b7.4(a); provided that promptly after , (b) or (d) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or or, in the case of any Restricted Subsidiary that is not a Subsidiary GuarantorExcluded Subsidiary, to any other Restricted Subsidiary that is the parent company of such Excluded Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions of cash and Cash Equivalents not otherwise prohibited under this Agreement;
(g) Dispositions that constitute, adjustments as applicable, Restricted Payments permitted under Section 7.6 and/or 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale Disposition of other assets (other than Capital Stock of a Wholly Owned Subsidiary unless such Disposition is of all of the Capital Stock of such Subsidiary or unless such Disposition does not result in any Subsidiary Guaranty being released other transfer (including by capital contributionthan in respect of a Bona Fide Joint Venture otherwise permitted hereunder) having a book value not to exceed $15,000,000 in the aggregate for any fiscal year of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthe Borrower; provided, that after the Q3Q4 End Date, in one fiscal year of the case Borrower during the term of a Specified Dispositionthis Agreement, at the Borrower’s sole option, the Company would, immediately after giving effect Borrower shall be permitted to such Specified Disposition be make additional Dispositions having a book value in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect an aggregate amount not to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming exceed $30,000,000 for such purposes the repayment of fiscal year;
(o) any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition)Recovery Event, provided, furtherthat the requirements of Section 2.12(b) are complied with in connection therewith;
(p) Dispositions constituting the abandonment, thatcancellation, with respect non-renewal or discontinuance of use or maintenance of non-material Intellectual Property or rights relating thereto that the Borrower determines in its reasonable judgment to paragraph be desirable to the conduct of its business and not materially disadvantageous to the interests of the Lenders;
(gq) aboveany other Disposition of assets (including equity interests); provided, that (i) if the total fair market value of the assets subject to such Disposition or series of related Dispositions is in excess of $5,000,000, it shall be for a fair market value, (ii) at least 75% of the total consideration for any such Disposition is in the form of cash or cash Equivalents and (iii) no Default or Event of Default then exists or will would result therefrom and from such Disposition (except if such Disposition is made pursuant to an agreement entered into at least 75% a time when no Default or Event of Default exists);
(r) any swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the business of the consideration received therefor Borrower and its Subsidiaries as a whole, as determined in good faith by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each management of the following shall be deemed to be cash: Borrower; and
(is) sale and leaseback transactions permitted by Section 7.11, provided, that the amount requirements of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes theretoSection 2.12(b) that are assumed by the transferee of any such assets or are otherwise cancelled complied with in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05therewith.
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 Wholly Owned Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary GuarantorLoan Party, all actions reasonably required by the Collateral Administrative Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale transfer or issuance of any Restricted Subsidiary’s Capital Stock (other than any Loan Party) to the Company or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, or the transfer or issuance of any Loan Party’s Capital Stock to any other Restricted SubsidiaryLoan Party;
(e) Dispositions the sale, lease or transfer of Property or assets from (i) the Company or a Subsidiary Guarantor Loan Party to the Company or another Subsidiary GuarantorLoan Party; provided that promptly after any such Dispositionsale, lease or transfer, all actions reasonably requested required by the Collateral Administrative Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor Loan Party to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party; provided, for the purposes of subclause (iii) of this clause (e), the aggregate amount of such sales, leases or transfers shall not exceed the sum of (1) $50,000,000 in any fiscal year (the “Permitted Disposition Amount”), plus (2) all of the unused Permitted Disposition Amount from the immediately preceding fiscal year (it being agreed that any such carried over amount shall be deemed used first in such immediately subsequent fiscal year), plus (3) all of the Permitted Disposition Amount from the immediately subsequent fiscal year (it being agreed that any such allocated amount shall be deemed used last in such immediately preceding fiscal year) plus (4) the Available Amount at such time (as determined immediately before giving effect to the making of such Disposition);
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) the Disposition of assets in any fiscal year having an aggregate fair market value (as determined in good faith by the Company) not to exceed 12.5% of the Consolidated Total Assets of the Company as determined as of the end of the immediately preceding fiscal year; provided that at least 75% of the consideration for such Disposition is in the form of cash or Cash Equivalents (it being understood that for purposes of this clause (g) the following shall be deemed to be cash and Cash Equivalents (x) any liabilities relating to any asset or of any Restricted Subsidiary that is subject to such Disposition (other than liabilities that are expressly subordinated to the proviso belowObligations) to the extent that the Company and its Restricted Subsidiaries are released from any liability thereunder, unlimited (y) any note or security that is sold for cash and Cash Equivalents by the Company or the applicable Restricted Subsidiary within 180 days following the date of receipt thereof and (z) Designated Non-Cash Consideration in an aggregate amount for all such Dispositions for Fair Market Valuenot to exceed $20,000,000 at any time outstanding (without giving effect to any write-down or write–off thereof));
(h) Dispositions constituting Liens permitted by Section 7.03, Dispositions constituting Restricted Payments permitted by Section 7.06 and Dispositions constituting Investments permitted by Section 7.07;
(i) any Recovery Event;
(ij) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;; and
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase business and sale abandonment or other transfer (including by capital contribution) lapse of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; providedintellectual property that is, that in the case reasonable business judgment of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such its Restricted Subsidiary Subsidiary, no longer used in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be useful in the form conduct of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05their respective businesses.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged worn out property or surplus or is replaced property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b7.4(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s the Capital Stock of any Subsidiary of any Applicable Party to the Company such Applicable Party or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from the Disposition of other assets (other than the Secured Guarantor Notes), provided that, (i) such Disposition is at fair market value, as reasonably determined by the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any Group Member making such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from such Disposition shall not result in a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or Material Adverse Effect, and (iii) from at the time of such Disposition, (A) a certificate of a Responsible Officer of the ASOT Borrower shall have been delivered to the ASOT Administrative Agent, which shall (1) include a computation demonstrating pro forma compliance with the covenants contained in Section 7.1(b) of the ASOT Credit Agreement after giving effect to such Disposition and (2) certify that no ASOT Loan Party Default or ASOT Loan Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition and (B) a Restricted Subsidiary certificate of a Responsible Officer of the Borrower shall have been delivered to the Lender, which shall include a certification that is not a Loan Partyno Default or Event of Default shall have occurred and be continuing at such time or after giving effect to such Disposition;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof[intentionally omitted];
(g) subject to the proviso below, unlimited Dispositions for Fair Market ValuePermitted Leases;
(h) any Recovery EventInvestments permitted by Section 7.8;
(i) Dispositions resulting from any taking asset sales pursuant to “forced-sale,” “buy-sell,” “put-call” or condemnation of any property similar arrangements in joint venture agreements of the Company or any of its Restricted SubsidiariesJoint Ventures in effect on the date hereof;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries Intellectual Property in the ordinary course of business; and
(nk) the purchase and sale or other transfer (including Dispositions, by capital contribution) means of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; providedtrade-in, that of equipment used in the case ordinary course of a Specified Dispositionbusiness, the Company wouldso long as such equipment is replaced or substituted, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenantssubstantially concurrently, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Nonlike-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05equipment.
Appears in 1 contract
Samples: Credit Agreement (Archstone)
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 (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other worn out Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b7.4(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (d) and priority of the Liens created by the Security Documents on such Property(e);
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor Disposition by the Borrower and its Restricted Subsidiaries of other Property, provided, that the provisions of Section 2.12, to the Company or another Subsidiary Guarantor; provided that promptly after any extent applicable to such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on complied with in connection with such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartyDisposition;
(f) discountsthe Disposition by the Borrower or any Restricted Subsidiary of Property to any Unrestricted Subsidiary; provided, adjustments that if such Disposition shall be made for consideration other than cash or forgiveness Cash Equivalents in an amount at least equal to the fair market value of accounts receivable the Property so Disposed of, the Borrower or the Restricted Subsidiary that is transferor in such Disposition shall be deemed to have made an Investment pursuant to Section 7.8(g) (which Investment must be permitted by such Section) in an amount equal to the difference between (i) the fair market value of the Property so Disposed of and (ii) the fair market value of the consideration received by such transferor for such Disposition (it being understood that Capital Stock, or any increase in the value of Capital Stock, of the transferee Unrestricted Subsidiary shall be deemed to have no value for purposes of calculating such difference);
(g) the Disposition by any Unrestricted Subsidiary (other contract claims than WPL and its Subsidiaries) of Property to any other Unrestricted Subsidiary;
(h) the Disposition by any Unrestricted Subsidiary to any Person of Property; provided, that such Disposition, to the extent it is made for less than fair market value, must be permitted as an Investment pursuant to Section 7.8; and
(i) any Recovery Event, provided, that the requirements of Section 2.12 are complied with in connection therewith;
(j) any Disposition of Property that is subject to a security interest in favor of another holder of Indebtedness in connection with the exercise of remedies by such holder with respect to such Property;
(k) the lease of property by the Borrower or any Subsidiary in the ordinary course of business or and in connection a manner consistent with collection or compromise thereof;existing and past practice; and
(gl) subject to an exchange of assets for other similar assets (or any substantially contemporaneous series of sale and purchase or purchase and sale transactions having substantially the proviso belowsame effect as an exchange of assets) in which the fair market value of the assets received by the Borrower and its Subsidiaries will equal or exceed the fair market value of the assets given by the Borrower and its Subsidiaries; provided, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
however, that (i) Dispositions resulting from any taking or condemnation contingent liabilities related to such acquired assets shall not be material in relation to the value thereof and (ii) the fair market value of assets so received by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed $75,000,000. Notwithstanding the foregoing, any property of the Company Disposition by WPL or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor Property must be permitted by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05WPL Note Purchase Agreement.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments Liens permitted under Section 7.07 and 7.03, Restricted Payments permitted under Section 7.06, Investments permitted under Section 7.07, and Restricted Paymentstransactions permitted under Section 7.067.09 ;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period and
(and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (go) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related De Minimis Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.;
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (iother than to the Parent, Holdings or SBA Senior Finance) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of businessbusiness of obsolete or worn out property, including the lease or sublease of excess or unneeded surplus real property not constituting a sale and leasebackneeded in the 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 $50,000,000 in the aggregate for any fiscal year of the Borrower;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition 7.4 and Dispositions of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such PropertyCash Equivalents;
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor and (ii) the sale or in the case issuance of any Restricted Subsidiary that is not a Subsidiary Guarantor, non-Loan Party Subsidiary’s Capital Stock to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(e) the Disposition (other than to the Parent, Holdings or SBA Senior Finance) of other assets having a fair market value (as determined in good faith by the Borrower) not to exceed the greater of $100,000,000 and 11% of Annualized Borrower EBITDA determined for the most recent fiscal quarter ended for which financial statements have been or are required to be delivered pursuant to Section 6.1 (it being understood that unaudited financial statements for the fourth fiscal quarter shall be disregarded for purposes hereof) in the aggregate for any fiscal year of the Borrower;
(f) discountsthe Disposition (other than to the Parent, adjustments Holdings or forgiveness SBA Senior Finance) of accounts receivable and other contract claims Towers in exchange for Towers with Tower Cash Flow at least equal in amount to the ordinary course Tower Cash Flow of business or in connection with collection or compromise thereofsuch Disposed Towers;
(g) subject any Disposition (other than to the proviso belowParent, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company Holdings, SBA Senior Finance or any of its Restricted Subsidiaries;
their respective Subsidiaries (j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to other than the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company Borrower and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; Subsidiaries)), provided, (x) in each case, that the requirements of Section 2.7(a) are complied with in connection therewith and (y) in the case of a Specified any such Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by payable for such Disposition is paid in cash on the Company or date of such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, Disposition; provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Non Cash Consideration received by the Company Borrower or any of its Restricted Subsidiaries Subsidiary in such Disposition having an aggregate Fair Market Valuefair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Non Cash Consideration received pursuant to this clause (g) that is at that time outstanding, not to exceed the greater of $25,000,000675,000,000 and 75% of Annualized Borrower EBITDA determined for the most recent fiscal quarter ended for which financial statements have been or are required to be delivered pursuant to Section 6.1 (it being understood that unaudited financial statements for the fourth fiscal quarter shall be disregarded for purposes hereof) at the time of the receipt of such Designated Non Cash Consideration, with the Fair Market Value fair market value of each item of Designated Non-Non Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. For the avoidance ;
(h) Dispositions of doubt(i) Towers that are not Qualified Towers, any issuance or sale of Capital Stock of the Company shall not be subject (ii) work-in-progress related to cancelled sites and (iii) assets related to the restrictions Services Business;
(i) the Disposition of Towers or Tower sites by the Borrower or any of its Subsidiaries to the Borrower or a Subsidiary Guarantor and (ii) the Disposition of Towers or Tower sites by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(j) the scheduled Dispositions set forth in this Section 7.05on Schedule 7.5;
(k) the Disposition of any Specified Unrestricted Foreign Entity; and
(l) other Dispositions, including of Towers or Tower sites, by the Borrower or any of its Subsidiaries; provided, that the ratio of Consolidated Net Debt to Annualized Borrower EBITDA, calculated on a pro forma basis, after giving effect to such Dispositions, would not exceed 5.50 to 1.00.
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 Restricted SubsidiarySubsidiary of the Parent, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged worn out or surplus Property (other than surplus real property and other than surplus inventory) in the ordinary course of business (including the abandonment or is replaced termination of leasehold interests in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback);
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property7.4;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions the Disposition of property or assets from (i) the Company one Loan Party to another Loan Party; provided, that prior to or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after simultaneously with any such DispositionDispositions, all actions reasonably requested (including all actions required by the Collateral Agent Agent) shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discountsthe Disposition of any assets (other than Capital Stock of Subsidiaries of the Parent); provided that (i) such sale, adjustments lease or other disposition shall be for Fair Market Value, (ii) the cash consideration received in respect thereof shall be not less than 75% of such Fair Market Value, and (iii)(a) 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), shall not exceed $2,500,000 per fiscal year and (b) to the extent that the Loan Parties request the consent of the Lenders to make Dispositions in addition to the Dispositions otherwise permitted by this Section 7.5, the Lenders agree to consider such additional Dispositions in good faith based upon the projected cash flow of the Parent and its Subsidiaries on a pro forma basis after giving effect to such Disposition, the consideration proposed to be received for the assets being Disposed of, and the projected Consolidated EBITDA and Consolidated Leverage Ratio of the Parent and its Subsidiaries on a pro forma basis after giving effect to such Disposition, provided that, nothing in this clause (b) shall be or be deemed a consent to any such additional Disposition or to any amendment to this Agreement in connection with any such additional Disposition;
(g) Dispositions of Property constituting investments permitted under Section 7.8 and Dispositions of Property constituting Restricted Payments permitted by Section 7.6;
(h) any Recovery Event;
(i) leases or subleases of real property owned or leased by any Loan Party to the extent such real property is not necessary or material to the business of the Loan Parties, entered into in the ordinary course of such Loan Party’s business in an arms length transaction and provided that any such lease shall expressly provide, pursuant to terms either (i) acceptable to the Collateral Agent in its reasonable discretion or (ii) previously provided to the Borrower and approved by the Collateral Agent, in each case, with the effect that such lease, and the tenant’s rights thereunder, are subject and subordinate in all respects to any Mortgage thereon and to the Lien thereof;
(j) Dispositions of cash and Cash Equivalents in the ordinary course of business and in a manner not otherwise prohibited by the terms of this Agreement or any other Loan Document;
(k) discounts or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
thereof (gexcluding credit memos issued in the ordinary course of business consistent with past practice) subject in an aggregate amount not to exceed an amount equal to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property amount of the Company or deductible under the Loan Parties’ credit insurance policies then in effect as reduced by any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) amounts applied to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06such deductible plus $1,500,000 in any fiscal year;
(l) the sale (without recourse) assignments of receivables (contract rights to purchase logs and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries chips in the ordinary course of businessbusiness consistent with past practice; and
(nm) the purchase and sale sale, lease or other transfer (including by capital contribution) disposition of Securitization Assets or interests therein pursuant any portion of the Midway Facility from time to any Permitted Securitization Financingtime; provided, that in the case of a Specified Dispositionsuch sale, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased lease or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) other disposition shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property personal property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the Disposition of Cash or Cash Equivalents and the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property7.4;
(d) Dispositions by the sale Borrower or issuance of any a Restricted Subsidiary’s Capital Stock Subsidiary to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other another Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after of any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartyInvestment in an Unrestricted Subsidiary;
(f) discounts, adjustments the sale or forgiveness issuance of accounts receivable any Subsidiary’s Capital Stock to the Borrower or any Subsidiary Guarantor and other contract claims in the ordinary course sale or issuance of business or in connection with collection or compromise thereofany Immaterial Subsidiary’s Capital Stock to any Immaterial Subsidiary;
(g) subject any Designated Asset Sale, provided that a Fair Value Determination has been made with respect to the proviso below, unlimited Dispositions for Fair Market Valuesuch Disposition;
(h) Dispositions of Property, not otherwise permitted under this Section 7.5, in any Recovery Eventone transaction or series of related transactions having a value not in excess of $10,000,000, and having an aggregate value not in excess of $20,000,000 in any fiscal year and not in excess of $50,000,000 during the term of this Agreement;
(i) Dispositions resulting from any taking or condemnation of any property of by the Company Borrower or any Restricted Subsidiary of its Restricted interest in the Argentina Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under any Recovery Event, provided, that the requirements of Section 7.102.13(c) are complied with in connection therewith;
(k) any Disposition of any Investment permitted pursuant to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.067.7(k);
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsany Disposition constituting any lease otherwise permitted under Section 7.3(j);
(m) assignments and licenses any Disposition of intellectual property Intellectual Property otherwise permitted under Section 7.3(l);
(n) any Disposition of all or any portion of the Company and Property comprising the Condo Component, provided that a Fair Value Determination has been made with respect to such Disposition;
(o) dedications of rights of way, easements or other development concessions made by Borrower or its Restricted Subsidiaries as necessary, otherwise desirable, or as may be required in connection with obtaining the ordinary course necessary approvals to develop, or as otherwise may be desirable to improve or remodel any Property;
(p) any Disposition of businessone or more aircraft;
(q) any Disposition of all or any portion of the Undeveloped Reno Land; and
(nr) the purchase and sale any Disposition of all or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as portion of the last day of the most recently ended Test Period (STAR and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05TIF Bonds.
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 (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory and other assets held for sale in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b6.4 (other than Section 6.4(b)(ii); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property);
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company US Borrower or any Subsidiary Guarantor other Loan Party or in the case sale or issuance of any Excluded Subsidiary’s (other than the Canadian Borrower’s) Capital Stock to another Restricted Subsidiary Subsidiary; provided that any Guarantor’s ownership interest therein is not a Subsidiary Guarantordiluted; and (ii) the sale or issuance of any Capital Stock of, to or any Indebtedness or other Restricted securities of, any Unrestricted Subsidiary;
(e) Dispositions from (i) the Company of receivables pursuant to factoring agreements or a Subsidiary Guarantor to the Company other similar agreements or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party arrangements including to a Restricted Permitted Receivables Financing Subsidiary that in connection with a Permitted Receivables Financing, in each case so long as the consideration for such Dispositions is not a Loan Partyin the form of cash or retained equity or subordinated interests in the Permitted Receivables Financing Assets being sold;
(f) discounts, adjustments the Disposition of cash or forgiveness Cash Equivalents;
(i) the license or sub-license of accounts receivable and other contract claims Intellectual Property in the ordinary course of business and (ii) the lapse or abandonment in connection with collection the ordinary course of business of any registrations or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions applications for Fair Market Valueregistration of any Intellectual Property;
(h) any Recovery Eventthe lease, sublease, license or sublicense of property as described in Section 6.3(i);
(i) Dispositions resulting from any taking the Disposition of surplus or condemnation of any other property no longer used or useful in the business of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company US Borrower and its Restricted Subsidiaries in the ordinary course of business; and;
(nj) so long as no Event of Default has occurred and is continuing at the time of closing thereof or at the time the related purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Dispositionagreement is entered into, the Company would, immediately Disposition of other assets from and after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition Closing Date so long as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, i) with respect to paragraph any Disposition pursuant to this clause (gi) abovefor a purchase price in excess of $3,000,000, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be is in the form of cash or Cash Equivalents, provided further that Equivalents or exchanged for purposes other assets of this proviso, each comparable or greater market value or usefulness to the business of the following shall be deemed US Borrower and its Restricted Subsidiaries, taken as a whole, (ii) with respect to be cash: any Disposition pursuant to this clause (ij) for a purchase price in excess of $6,000,000, such sale, transfer or disposition is made at fair value (as determined by the amount US Borrower 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 the Company’s or any Restricted Subsidiary’s most recent balance sheet provided hereunder or in the notes footnotes thereto) of the US 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 of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated respect to the Obligations)applicable Disposition and for which the US Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (iiB) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (iiiC) any Designated Non-Cash Consideration received by the Company or any in respect of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Valuefair market value (as determined by the US Borrower in good faith) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (gC) that is at that time outstanding, does not to exceed $25,000,0007,500,000, with the Fair Market Value 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. For , shall be deemed for purposes of clause (j)(i) to be cash and (iv) that the avoidance aggregate gross proceeds of doubtall Dispositions in reliance upon this clause (j) shall not exceed, in any issuance fiscal year of Holdings, the greater of (A) $75,000,000 and (B) 12.20% of Total Assets (determined as of the end of the immediately preceding fiscal year); provided that for any given fiscal year this limitation may be increased by the unused amount for the previous fiscal year and, in the event of any such carryover, Dispositions in such fiscal year will be deducted first from the carried over amount;
(k) the Disposition of assets subject to or sale 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 the US Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the extent constituting an Investment, such Disposition must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party 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 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, the US Borrower and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(u) the US Borrower or any Restricted Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Company governing body of the Subsidiary if and to the extent required by any applicable law;
(v) 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 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 not constitute Collateral; and
(w) the sale or disposition, within one (1) year after the date of a Permitted Acquisition, of (i) any portion of a business or operations acquired in a Permitted Acquisition, that is, in the reasonable judgment of the US Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Holdings, the US Borrower or any Restricted Subsidiary taken as a whole or (ii) solely to the extent required by any Governmental Authority pursuant to applicable anti-trust law or other similar Requirement of Law in connection with any Permitted Acquisition, any other portion of a business or operations of Holdings, the US Borrower and the Restricted Subsidiaries, in each case, provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the US Borrower), (y) no Event of Default has occurred and is continuing or would result from such disposition and (z) at least 75% of the purchase price for all property subject to such Asset Sale shall be paid to Holdings, the restrictions set forth US Borrower or any Restricted Subsidiary solely in this Section 7.05cash and Cash Equivalents.
Appears in 1 contract
Samples: Credit Agreement (Continental Building Products, Inc.)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease sale of excess or unneeded parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not constituting a sale and leasebacknecessary in the business of the Borrower or such Class I Restricted Subsidiary;
(bi) the sale Disposition of inventory in the ordinary course of businessbusiness and (ii) the granting of leases, licenses, subleases and sublicenses of real and personal property (including Intellectual Property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.04(b7.4(a); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (b) and priority of the Liens created by the Security Documents on such Property(d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Restricted Subsidiary’s Capital Stock to to, the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(if) Dispositions resulting from any taking an exchange or condemnation “swap” of any property fixed, tangible assets of the Company Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 6.9, provided further that, the fair market value of all such assets exchanged or “swapped” after the Restatement Closing Date shall not exceed $150,000,000 in the aggregate;
(g) the issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any Disposition of digital cinema equipment in connection with a Digital Cinema Equipment Lease with DCIP or Digital Projector Financing;
(j) a(i) any sale or other Disposition of the type described in EITF 97-10ASC 840-40-55 in connection with a sale and leaseback transaction otherwise permitted hereby; and (ii) any Sale and Lease-Back Leaseback Transaction; provided that the aggregate fair market value of all real property Disposed of pursuant to such Sale and Leaseback Transactions permitted under Section 7.10pursuant to this clause (j)(ii) shall not exceed $300,000,000 during the term of this Agreement after the Fifth Amendment Effective Date;
(k) the Disposition of any real property subject to a sale contract on the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06Restatement Closing Date as described on Schedule 7.5(k);
(li) the sale Disposition of the Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, LLC, NCM Holdings or any holding company holding any such interest and/or (without recourseii) Disposition of receivables (and related assets) any interest in DCIP, any Unrestricted Subsidiary, any joint venture or any interest acquired pursuant to factoring or other receivables sale arrangements and similar financing programsa Permitted Business Investment, and, in each case under this Section 7.5(l), the subsequent Disposition of any consideration received pursuant to such Disposition;
(m) assignments the Disposition of cash and licenses Cash Equivalents permitted under this Agreement;
(n) Dispositions of intellectual property Property pursuant to contracts between the Borrower and the U.S. Department of Justice or the Company and its Restricted Subsidiaries in the ordinary course of businessFederal Trade Commission related to any Permitted Acquisition; and
(no) the purchase and sale or Disposition after the Restatement Closing Date of other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of assets having a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, fair market value not to exceed $25,000,000, with 500,000,000 in the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect aggregate. Certain Dispositions pursuant to subsequent changes in value. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.057.5 may give rise to mandatory prepayment obligations under Section 2.10(b).
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 (i) cashobsolete, Cash Equivalents worn out, uneconomic, damaged or Investment Grade Securities surplus property, equipment, or (ii) other Property assets or property, equipment or other assets that the Company (or any Restricted Subsidiary of the Company) reasonably determines is are no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of businessbusiness of the Borrower and its Restricted Subsidiaries (other than Eligible Trade Accounts, including Eligible Credit Card Accounts or Eligible Inventory), whether now or hereafter owned or leased or acquired in connection with an acquisition or used or useful in the lease or sublease conduct of excess or unneeded real property not constituting a sale the business of the Borrower and leasebackits Restricted Subsidiaries;
(b) the sale of inventory and other assets held for sale in the ordinary course of businessbusiness or consistent with past practice;
(c) Dispositions permitted by Section 7.04(b6.4 (other than Section 6.4(b)(ii); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property);
(d) (i) the sale or issuance of any Restricted Subsidiary’s Capital Stock (other than the Initial Borrower’s Capital Stock) to any Borrower Loan Party or the Company sale or issuance of any 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 any Capital Stock of, or any Subsidiary Guarantor Indebtedness or in the case of other securities of, any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Unrestricted Subsidiary;
(e) Dispositions from (i) of receivables, or participations therein, to a Permitted Receivables Financing Subsidiary in connection with a Permitted Receivables Financing, in each case so long as the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after consideration for any such Disposition, all actions reasonably requested by Disposition is in the Collateral Agent shall be taken to insure the continued perfection and priority form of the Liens created by the Security Documents on cash or retained Capital Stock or subordinated interests of such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Permitted Receivables Financing Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partysubordinated interests in the Permitted Receivables Financing Assets being sold;
(f) discounts, adjustments the Disposition of cash or forgiveness Cash Equivalents or investment grade securities;
(i) the license or sub-license of accounts receivable and other contract claims Intellectual Property in the ordinary course of business and (ii) the lapse or abandonment in connection with collection the ordinary course of business of any registrations or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions applications for Fair Market Valueregistration of any Intellectual Property;
(h) any Recovery Eventthe lease, sublease, license or sublicense of property as described in Section 6.3(i);
(i) Dispositions resulting from any taking the Disposition of surplus or condemnation of any other property no longer used or useful in the business of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries Borrower Group Members in the ordinary course of business; and;
(nj) so long as no Event of Default has occurred and is continuing at the purchase and sale or time of closing thereof, the Disposition of other transfer assets (including by capital contribution) the issuance or sale of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case shares of a Specified Disposition, Restricted Subsidiary’s Capital Stock) from and after the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition Closing Date so long as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, i) with respect to paragraph any Disposition pursuant to this clause (gj) abovefor a purchase price in excess of $10.0 million, no Default or Event of Default exists or will result therefrom and at least 7575.0% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be is in the form of cash or Cash Equivalents, provided further that Equivalents or exchanged for purposes other assets of this proviso, each comparable or greater market value or usefulness to the business of the following shall be deemed Borrower Group Members, taken as a whole, and (ii) with respect to be cash: any Disposition pursuant to this clause (ij) for a purchase price in excess of $10.0 million such Disposition is made at fair value (as determined by the amount of Initial Borrower in good faith); provided, that (A) any liabilities (as shown on the CompanyInitial Borrower’s or any such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the notes footnotes thereto) of the Initial 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 any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to constitute Indebtedness, for which the Obligations)Initial Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (iiB) any notes or other obligations or other securities or assets received by the Company Initial Borrower or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (iiiC) any Designated Non-Cash Consideration received by the Company or any in respect of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Valuefair market value (as determined by the Initial Borrower in good faith) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (gC) that is has not been converted into cash, does not exceed the greater of $15.0 million and 10.0% of Consolidated EBITDA for the Relevant Reference Period at that any time outstanding, not to exceed $25,000,000, with the Fair Market Value 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. For , shall be deemed for purposes of clause (j)(i) to be cash;
(k) the avoidance Disposition of doubtassets 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 Borrower Group Member; provided, that if the transferor of such 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-Loan Party Subsidiary 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 customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(r) Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice (and not for financing purposes);
(s) the partial or total unwinding of any issuance Hedge Agreement or sale any Cash Management Services;
(t) in order to resolve disputes that occur in the ordinary course of business or consistent with past practice, the Borrower Group Members may discount or otherwise compromise for less than the face value thereof (with or without recourse), notes or accounts receivable;
(u) Dispositions in connection with reorganizations and other activities related to tax planning and re-organization, so long as after giving effect thereto, the interest of the Secured Parties in the Collateral and the guarantees under the Loan Documents, taken as a whole, is not materially impaired; provided that immediately prior to and after giving effect to any such Disposition, no Default or Event of Default shall have occurred and be continuing;
(v) any Borrower Group Member may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Company shall not be subject governing body of the Subsidiary if and to the restrictions set forth 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) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a similar business;
(x) foreclosure, condemnation or any similar action with respect to any property or other assets (including any settlement of, or payment in respect of, any property or casualty insurance claim);
(y) [reserved];
(z) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Initial Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(aa) any financing transaction with respect to property constructed, acquired, replaced, repaired or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by the Initial Borrower or any Restricted Subsidiary after the Closing Date, including asset securitizations permitted hereunder;
(bb) any lending or disposition of samples, including time-limited evaluation software, provided to customers or prospective customers;
(cc) any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(dd) the issuance of directors’ qualifying shares and shares issued to foreign nationals, in each case, as required by applicable law; and
(ee) other Dispositions in an aggregate amount not to exceed $10.0 million; Any Disposition of Capital Stock of any Borrower Group Member from one Borrower Group Member to another Borrower Group Member otherwise permitted by this Section 7.056.5 that results in any Subsidiary Guarantor becoming a Non-Loan Party Subsidiary or an Excluded Subsidiary (pursuant to clause (d) of the definition of such term after giving effect to such transaction) shall be deemed an Investment in a Non-Loan Party Subsidiary for purposes of (and subject to) Section 6.7 in an amount equal to the fair market value (as reasonably determined by the Initial Borrower in good faith) of such Subsidiary Guarantor prior to giving effect to such transaction.
Appears in 1 contract
Samples: Abl Credit Agreement (Foundation Building Materials, 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 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 (iincluding the abandonment of Intellectual Property) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including business or other assets or Property not practically usable in the lease business of the Borrower or sublease of excess or unneeded real property not constituting a sale and leasebackthe 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 Section 7.04(b); provided that promptly after 7.4(a) or (b) and (ii) Dispositions by the Borrower of its Property (but not all or substantially all of its Property) to any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (iother 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 Company or a Subsidiary Guarantor proceeds of such Disposition are reasonably promptly applied to the Company or another Subsidiary Guarantor; provided that promptly after any purchase price of such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Partyreplacement property;
(f) discountsDispositions 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, adjustments 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 forgiveness cancellations of accounts receivable and other contract claims 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 or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) or distribution of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programsadvertising;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and
(n) the purchase and sale or Disposition of other transfer (including by capital contribution) assets having a book value not to exceed $15,000,000 in the aggregate for any fiscal year of Securitization Assets or interests therein pursuant to any Permitted Securitization Financingthe Borrower; provided, that in one fiscal year of the case Borrower during the term of a Specified Dispositionthis Agreement, at the Borrower’s sole option, the Company would, immediately after giving effect Borrower shall be permitted to such Specified Disposition be make additional Dispositions having a book value in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect an aggregate amount not to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming exceed $30,000,000 for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) fiscal year less the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated Investments made pursuant to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions proviso set forth in this Section 7.057.8(u); and
(o) any Recovery Event, provided, that the requirements of Section 2.12(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, 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 (i) cash, Cash Equivalents obsolete or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged worn out property or surplus or is replaced property in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(bSections 7.4(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (c) and priority of the Liens created by the Security Documents on such Property(d);
(d) the sale or issuance of any Restricted Subsidiary’s the Capital Stock of any Subsidiary of an Applicable Party to the Company or such Applicable Party, any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted SubsidiaryMortgage/Mezzanine Borrower;
(e) Dispositions from 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 Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any ASOT Group Member making such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from such Disposition shall not result in a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or Material Adverse Effect, (iii) from at the time of such Disposition, a Loan Party certificate of a Responsible Officer shall have been delivered to the Administrative Agent, which shall include (A) a Restricted Subsidiary 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 is not a Loan Partyno 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) discountsany Recovery Event, adjustments 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 forgiveness similar arrangements in joint venture agreements of accounts receivable and other contract claims the Joint Ventures in effect on the date hereof;
(j) licenses of Intellectual Property in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10business;
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06by 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 (without recourse) or issuance of receivables (and related assets) pursuant the Capital Stock of Holdings I Corp, Holdings I, Holdings II, the Principal Guarantor, Secured Note LLC or OC/SD JV Holdings LLC to factoring any Person; provided that, if such Person is not a Parent/Affiliate Guarantor on the date of such sale or other receivables sale arrangements and similar financing programs;issuance, such Person shall contemporaneously become an Additional Guarantor in accordance with Section 6.10(c); and
(m) assignments and licenses of intellectual property the Borrower may Dispose of the Company and its Restricted Subsidiaries in German Assets to the ordinary course of businessAffiliate Borrower I-B; and
(n) provided that, the purchase and sale or other transfer (including by capital contributionAffiliate Borrower I-B contemporaneously complies with Section 6.10(c) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated NonAffiliate Borrower I-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05B Credit Agreement.
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 Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the Company or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(i) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to the extent constituting Dispositions, Investments Liens permitted under Section 7.07 and 7.03, Restricted Payments permitted under Section 7.06, Investments permitted under Section 7.07, and transactions permitted under Section 7.09;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of business; and;
(n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; and
(o) De Minimis Dispositions; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, (x) no Default or Event of Default exists or will result therefrom and (y) with respect to an Applicable Disposition, at least 75% of the consideration received therefor by the Company or from such Restricted Subsidiary in excess of $10,000,000 Disposition, together with all such consideration for any individual Disposition other Applicable Dispositions consummated since June 28, 2019 (or series of related Dispositions) on a cumulative basis), shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed the greater of $25,000,00050,000,000 and 2.0% of Consolidated Total Assets, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Limitation on Disposition of Property. Dispose of any of its Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced worn out property in the ordinary course of business, including the lease or sublease sale of excess or unneeded parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not constituting a sale and leasebacknecessary in the business of the Borrower or such Class I Restricted Subsidiary;
(bi) the sale Disposition of inventory in the ordinary course of businessbusiness and (ii) the granting of leases, licenses, subleases and sublicenses of real and personal property (including Intellectual Property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.04(b7.4(a); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection (b) and priority of the Liens created by the Security Documents on such Property(d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Restricted Subsidiary’s Capital Stock to to, the Company Borrower or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, to any other Restricted Subsidiary;
(e) Dispositions from (i) the Company or a Subsidiary Guarantor to the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party;
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) subject to the proviso below, unlimited Dispositions for Fair Market Value;
(h) any Recovery Event;
(if) Dispositions resulting from any taking an exchange or condemnation “swap” of any property fixed, tangible assets of the Company Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 6.9, provided further that, the fair market value of all such assets exchanged or “swapped” shall not exceed $150,000,000 during the term of this Agreement;
(g) the issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any sale and leaseback transaction permitted by Section 7.11;
(j) Sale a sale or other Disposition of the type described in EITF 97-10 in connection with a sale and Lease-Back Transactions leaseback transaction otherwise permitted under Section 7.10hereby;
(k) the Disposition of any real property subject to a sale contract on the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06Closing Date as described on Schedule 7.5(k);
(l) the sale (without recourse) Disposition of receivables (the Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, LLC, NCM Holdings or any holding company holding any such interest and related assets) the subsequent Disposition of any consideration received pursuant to factoring or other receivables sale arrangements and similar financing programssuch Disposition; provided that the Net Cash Proceeds of such Disposition are applied toward prepayment of the Loans to the extent required by Section 2.10(c);
(m) assignments the Disposition of cash and licenses Cash Equivalents permitted under this Agreement;
(n) Dispositions of intellectual property Property pursuant to contracts between the Borrower and the U.S. Department of Justice related to the Acquisition up to the amount set forth in Section 6.3(d) of the Company and its Restricted Subsidiaries Acquisition Agreement as in effect on the ordinary course date of businessexecution thereof; and
(no) the purchase and sale or Disposition of other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of assets having a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, fair market value not to exceed $25,000,000, with 500,000,000 during the Fair Market Value term of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05Agreement.
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 Restricted Subsidiary, or issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of (i) cash, Cash Equivalents business of obsolete or Investment Grade Securities worn out Property or (ii) other Property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in the business of the Company provided that either:
(i) such Disposition could not reasonably be expected to materially adversely affect either Project or any of the Project Security; or
(ii) with respect to Property Disposed of by reason of its businessobsolescence or worn out condition, has become obsoleteprior to or promptly following such Disposition any such Property shall be replaced (if replacement is in fact necessary or desirable) with other Property of substantially equal or greater utility and similar use and either (A) a value at least substantially equal to that of the replaced Property when first acquired or (B) substantially equal or greater quality and, damaged if applicable, prestige and calibre as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and the Company shall promptly subject such replacement property to the Lien of the Security Documents in favour of the Secured Creditors of at least the same priority as Property so replaced, provided further that, in the case of any Asset Sale permitted pursuant to this sub-paragraph 5(a)(ii):
(A) the Company may deliver a Reinvestment Notice in respect thereof;
(B) any remaining Net Cash Proceeds of such Asset Sale (and any Reinvestment Prepayment Amount) are applied towards prepayment of the Advances under the Term Loan Facilities in accordance with paragraph 3 of Schedule 9 (Mandatory Prepayment); and
(C) the aggregate amount of Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to a Reinvestment Notice delivered under sub-paragraph (A) shall not exceed USD10,000,000 or surplus or is replaced its equivalent in any Fiscal Year;
(b) the Disposition of cash (in each case in transactions otherwise permitted under this Agreement), Investments permitted pursuant to paragraph 8 of this Part B, inventory (in the ordinary course of business), including receivables (in connection with the lease collection thereof and otherwise as customary in business activities of the type conducted by the Company) and cash or sublease non-cash prizes and other complimentary items for customers customary in business activities of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in type conducted by the ordinary course of businessCompany;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary Guarantor, all actions reasonably required by the Collateral Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale or issuance of any Restricted Subsidiarythe Company’s Capital Stock (other than Disqualified Stock) to its direct Shareholders provided that such Capital Stock is fully paid upon such issuance (or, as the case may be, sale) and is subject to the Liens created under the Company Share Pledge;
(d) in addition to other Dispositions allowed under this paragraph 5, Dispositions of Property having a fair market value not in excess of USD5,000,000 or any Subsidiary Guarantor or its equivalent in the case of aggregate in any Restricted Subsidiary Fiscal Year following the Construction Completion Date; provided that is not a Subsidiary Guarantor, (i) the consideration received for such Property shall be in an amount at least equal to any other Restricted Subsidiarythe fair market value thereof; and (ii) the sole consideration received shall be cash;
(e) Dispositions from (i) subject to compliance with paragraph 23 of this Part B, the Company may enter into any leases or a Subsidiary Guarantor licences with respect to any space on or within the Company or another Subsidiary Guarantor; provided that promptly after any such Disposition, all actions reasonably requested by the Collateral Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan PartySite Facilities;
(f) discounts, adjustments or forgiveness the incurrence of accounts receivable and other contract claims in the ordinary course Liens permitted under paragraph 3 of business or in connection with collection or compromise thereofthis Part B;
(g) subject to any Event of Eminent Domain provided that the proviso below, unlimited Dispositions for Fair Market Valuerequirements of Schedule 9 (Mandatory Prepayment) are complied with in connection therewith;
(h) any Recovery Event;subject to compliance with paragraph 17 of this Part B, the Company may enter into Subconcessions; or
(i) Dispositions resulting from any taking or condemnation of Disposition not falling within any property of the Company or any preceding sub-paragraph of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;
(k) to this paragraph 5 made with the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property prior written consent of the Company and its Restricted Subsidiaries in the ordinary course of business; and
Intercreditor Agent (n) the purchase and sale or other transfer (including by capital contribution) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition be in compliance with the Financial Covenants, determined on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed consent not to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligationsunreasonably withheld), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05.
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 Wholly Owned Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) cash, Cash Equivalents or Investment Grade Securities or (ii) other Property property that the Company (or any Restricted Subsidiary of the Company) reasonably determines is no longer used or useful in its business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business, including the lease or sublease of excess or unneeded real property not constituting a sale and leaseback;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.04(b); provided that promptly after any such Disposition of any Property to the Company or a Subsidiary GuarantorLoan Party, all actions reasonably required by the Collateral Administrative Agent shall be taken to insure the perfection and priority of the Liens created by the Security Documents on such Property;
(d) the sale transfer or issuance of any Restricted Subsidiary’s Capital Stock (other than any Loan Party) to the Company or any Subsidiary Guarantor or in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor, or the transfer or issuance of any Loan Party’s Capital Stock to any other Restricted SubsidiaryLoan Party;
(e) Dispositions the sale, lease or transfer of Property or assets from (i) the Company or a Subsidiary Guarantor Loan Party to the Company or another Subsidiary GuarantorLoan Party; provided that promptly after any such Dispositionsale, lease or transfer, all actions reasonably requested required by the Collateral Administrative Agent shall be taken to insure the continued perfection and priority of the Liens created by the Security Documents on such Property and assets, (ii) from a Restricted Subsidiary that is not a Subsidiary Guarantor Loan Party to the Company or any other Restricted Subsidiary or (iii) from a Loan Party to a Restricted Subsidiary that is not a Loan Party; provided, for the purposes of subclause (iii) of this clause (e), the aggregate amount of such sales, leases or transfers shall not exceed the sum of (1) $50,000,000 in any fiscal year (the “Permitted Disposition Amount”), plus (2) all of the unused Permitted Disposition Amount from the immediately preceding fiscal year (it being agreed that any such carried over amount shall be deemed used first in such immediately subsequent fiscal year), plus (3) all of the Permitted Disposition Amount from the immediately subsequent fiscal year (it being agreed that any such allocated amount shall be deemed used last in such immediately preceding fiscal year) plus (4) the Available Amount at such time (as determined immediately before giving effect to the making of such Disposition);
(f) discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof;
(g) the Disposition of assets in any fiscal year having an aggregate fair market value (as determined in good faith by the Company) not to exceed 12.5% of the Consolidated Total Assets of the Company as determined as of the end of the immediately preceding fiscal year; provided that at least 75% of the consideration for such Disposition is in the form of cash or Cash Equivalents (it being understood that for purposes of this clause (g) the following shall be deemed to be cash and Cash Equivalents (x) any liabilities relating to any asset or of any Restricted Subsidiary that is subject to such Disposition (other than liabilities that are expressly subordinated to the proviso belowObligations) to the extent that the Company and its Restricted Subsidiaries are released from any liability thereunder, unlimited (y) any note or security that is sold for cash and Cash Equivalents by the Company or the applicable Restricted Subsidiary within 180 days following the date of receipt thereof and (z) Designated Non-Cash Consideration in an aggregate amount for all such Dispositions for Fair Market Valuenot to exceed $20,000,000 at any time outstanding (without giving effect to any write-down or write-off thereof));
(h) Dispositions constituting Liens permitted by Section 7.03, Dispositions constituting Restricted Payments permitted by Section 7.06 and Dispositions constituting Investments permitted by Section 7.07;
(i) any Recovery Event;
(ij) Dispositions resulting from any taking or condemnation of any property of the Company or any of its Restricted Subsidiaries;
(j) Sale and Lease-Back Transactions permitted under Section 7.10;; and
(k) to the extent constituting Dispositions, Investments permitted under Section 7.07 and Restricted Payments permitted under Section 7.06;
(l) the sale (without recourse) of receivables (and related assets) pursuant to factoring or other receivables sale arrangements and similar financing programs;
(m) assignments and licenses of intellectual property of the Company and its Restricted Subsidiaries in the ordinary course of businessbusiness and abandonment or lapse of intellectual property that is, in the reasonable business judgment of the Company or its Restricted Subsidiary, no longer used in or useful in the conduct of their respective businesses.; and
(nl) the purchase and sale or other transfer Spin-Off; provided that (including by capital contributioni) of Securitization Assets or interests therein pursuant to any Permitted Securitization Financing; provided, that in the case of a Specified Disposition, the Company would, immediately after giving effect to such Specified Disposition the Spin-Off, no Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to the Spin-Off, the Company shall be in compliance with the Financial Covenants, determined Covenant on a Pro Forma Basis giving effect to such Specified Disposition as of the last day of the most recently ended Test Period (and assuming for such purposes the repayment of any Indebtedness repaid, tendered, repurchased, redeemed, defeased or discharged in connection with such Specified Disposition), provided, further, that, with respect to paragraph (g) above, no Default or Event of Default exists or will result therefrom and at least 75% of the consideration received therefor by the Company or such Restricted Subsidiary in excess of $10,000,000 for any individual Disposition (or series of related Dispositions) shall be in the form of cash or Cash Equivalents, provided further that for purposes of this proviso, each of the following shall be deemed to be cash: (i) the amount of any liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction (other than any such liabilities that are subordinated to the Obligations), (ii) any notes or other obligations or other securities or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof (to the extent of the cash or Cash Equivalents received) and (iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (g) that is at that time outstanding, not to exceed $25,000,000, 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. For the avoidance of doubt, any issuance or sale of Capital Stock of the Company shall not be subject to the restrictions set forth in this Section 7.05pro forma basis.
Appears in 1 contract
