Limitation on Dispositions. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Person, except: (a) Dispositions of surplus, obsolete or worn out Property and Property no longer used or useful in the conduct of the business of the Borrower or any Subsidiary in the ordinary course of business; (b) the lapse, abandonment, cancellation or non-exclusive license of any immaterial Intellectual Property in the ordinary course of business; (c) Dispositions of inventory or goods held for sale in the ordinary course of business; (d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h)); (e) any sale or issuance of (i) the Equity Interests of any Subsidiary to Holdings, the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (f) any Disposition of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith; (g) transfers of condemned Property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Property as part of an insurance settlement; (h) 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 agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith; (i) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables); (j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party; (k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of the Subsidiaries; (l) Dispositions of Cash Equivalents; (m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) 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; (n) the unwinding of any Swap Contract in accordance with its terms; (o) to the extent constituting Dispositions, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09; and (p) (i) the Shoals Facility Lease Termination and (ii) Dispositions of machinery and equipment in connection with the closing of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing.
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Samples: Credit Agreement (Pacific Investment Management Co LLC), Credit Agreement (Pacific Investment Management Co LLC), Credit Agreement (FreightCar America, Inc.)
Limitation on Dispositions. Dispose The Company will not, and will not permit a Restricted Subsidiary to, 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 Subsidiary, or issue or sell any Equity Interests of such Subsidiary to any Person, except:
(a) Dispositions sale or Disposition of surplus, obsolete or worn out Property machinery and Property equipment no longer used or useful in the conduct of the business of the Borrower Company or any Subsidiary in the ordinary course of businessa Restricted Subsidiary;
(b) the lapse, abandonment, cancellation Disposition of obsolete or nonworn-exclusive license of any immaterial Intellectual Property out property in the ordinary course of business;
(c) Dispositions sale of inventory or goods held for sale and immaterial assets, in each case in the ordinary course of business;
(d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h))sale or issuance of any Equity Interests of a Restricted Subsidiary to the Company or another Restricted Subsidiary;
(e) Dispositions resulting from any sale taking or issuance of (i) the Equity Interests condemnation of any Property of the Company or a Restricted Subsidiary to Holdings, the Borrower by any Governmental Authority or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not assets subject to a Loan Party to any other Subsidiary that is not a Loan Partycasualty;
(f) any a Disposition of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower in connection with a sale and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens leaseback otherwise permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewiththis Indenture;
(g) transfers Dispositions of condemned Property as a result other property in any fiscal year of the exercise Company, so long as such property, together with all other property Disposed of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise)during such fiscal year, and transfers of properties that shall have been subject to a casualty to the respective insurer of such Property as part of an insurance settlementfair market value not exceeding $1.0 million;
(h) Dispositions licensing, on a non-exclusive basis, of Investments intellectual property rights in joint ventures to the extent required ordinary course of business that does not materially affect the value to, or use by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements Company and similar binding agreements; provided that the requirements its Restricted Subsidiaries of Section 2.07(a), to the extent applicable, are complied with in connection therewithsuch intellectual property;
(i) leasing or subleasing assets in the ordinary course of business;
(j) lapse of intellectual property of the Company or a Restricted Subsidiary to the extent not economically desirable in the conduct of its business or the abandonment of intellectual property rights in the ordinary course of business so long as such lapse is not adverse to the interests of the Holders;
(k) involuntary loss, damage or destruction of property;
(l) Dispositions of cash and cash equivalents in the ordinary course of business;
(m) sale or discount, in each case without recourse and in the ordinary course of business, by the Company or a Restricted Subsidiary of overdue accounts receivable or notes receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent or in connection with customary industry practice (the bankruptcy or reorganization of the applicable account debtors and not as part dispositions of any bulk sale securities received in any such bankruptcy or financing of receivables);
(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;
(k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of the Subsidiaries;
(l) Dispositions of Cash Equivalents;
(m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) 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;reorganization; and
(n) Dispositions in connection with settlement of disputes in amounts that are not, individually or in the unwinding aggregate, material to the Company or its operations. No Qualified Restricted Subsidiary shall sell or dispose of any Swap Contract in accordance with of its terms;
(o) to the extent constituting Dispositionsproperty, other than: (i) Liens permitted by Section 6.02, (ii) to another Qualified Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09Subsidiary; and
(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions a sale or disposition of machinery and equipment a type described in connection with the closing clause (a), (b), (c), (e), (f), (g), (h), (i), (j), (k), (l), (m) or (n) of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing4.18.
Appears in 1 contract
Limitation on Dispositions. No Restricted Person will Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned assets or hereafter acquired, or, in the case of properties or any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Personinterest therein, except:
(a) Dispositions of surplus, equipment that is worthless or obsolete or worn out Property and Property in the ordinary course of business, that is no longer used or useful in the conduct of the business its business, or that is replaced by equipment of the Borrower or any Subsidiary at least equal suitability and value;
(b) inventory (including oil and gas sold as produced and seismic data) that is sold in the ordinary course of business;
(b) the lapse, abandonment, cancellation or non-exclusive license of any immaterial Intellectual Property in the business on ordinary course of businesstrade terms;
(c) Dispositions of inventory defaulted notes or goods held for sale in the ordinary course of business;
(d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h));
(e) any sale or issuance of (i) the Equity Interests of any Subsidiary to Holdings, the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(f) any Disposition of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(g) transfers of condemned Property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Property as part of an insurance settlement;
(h) 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 agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(i) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of in connection with any bulk sale or financing of receivables);
(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantortransaction, (ii) any Subsidiary Guarantor to Holdingsin each case, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;
(k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do to the extent not materially interfere with prohibited by Section 5.8;
(d) property of (i) the business Borrower that is transferred to any Subsidiary of the Borrower or that is a Guarantor and (ii) any Subsidiary of the SubsidiariesBorrower that is transferred to the Borrower or to any other Subsidiary of the Borrower that is a Guarantor;
(le) Dispositions of Cash Equivalentspursuant to Distributions permitted under Section 5.6;
(mf) Dispositions farmouts in the ordinary course of Property (other than Equity Interests or all or substantially all business of the assets of Holdings, the Borrower or any of their Subsidiaries) to the extent that (i) undeveloped acreage and assignments in connection with 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 propertyfarmouts;
(ng) the unwinding of any Swap Contract interests in accordance with its terms;
(o) Oil and Gas Properties, or portions thereof, to the extent constituting Dispositions, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09which no Proved Reserves are attributed; and
(ph) interests in Oil and Gas Properties to which Proved Reserves are attributed and Hedging Contracts; provided that such Disposition would not result in the Borrowing Base Value of all of the Oil and Gas Properties plus the Borrowing Base Value of all of the Hedging Contracts, in each case, Disposed of pursuant to this subsection since the most recent Scheduled Determination to exceed an amount equal to five percent (5%) of the Borrowing Base then in effect. No Disposition may be made pursuant to Section 5.5(g) or Section 5.5(h) unless (i) the Shoals Facility Lease Termination made for fair consideration to a Person who is not an Affiliate and (ii) Dispositions of machinery and equipment in connection with the closing of the Shoals Facility no Default or Borrowing Base Deficiency then exists or would result therefrom. No Restricted Person will abandon, or consent to the Mexican Subsidiaries abandonment of, any oil or otherwisegas well constituting Collateral so long as such well is capable (or is subject to being made capable through drilling, including reworking, or other operations that it would be commercially feasible to conduct) of producing Hydrocarbons or other minerals in commercial quantities (as determined without considering the effect of any further Dispositions Security Document). No Restricted Person will elect not to participate in a proposed operation on any Oil and Gas Property constituting Collateral where the effect of such machinery and equipment by election would be the Mexican Subsidiaries. To permanent forfeiture of any material interest in the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoingCollateral.
Appears in 1 contract
Limitation on Dispositions. Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Person, except:
(a) Dispositions of surplus, obsolete or worn out Property and Property no longer used or useful in the conduct of the business of the Borrower or any Subsidiary in the ordinary course of business;
(b) the lapse, abandonment, cancellation or non-exclusive license of any immaterial Intellectual Property in the ordinary course of business;
(c) Dispositions of inventory or goods held for sale in the ordinary course of business;
(d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h));
(e) any sale or issuance of (i) the Equity Interests of any Subsidiary to Holdings, the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(f) any Disposition of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(g) transfers of condemned Property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Property as part of an insurance settlement;
(h) 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 agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(i) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;
(k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of the Subsidiaries;
(l) Dispositions of Cash Equivalents;
(m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) 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;
(n) the unwinding of any Swap Contract in accordance with its terms;
(o) to the extent constituting Dispositions, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09; and
(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions of machinery and equipment in connection with the closing of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing.Guarantor
Appears in 1 contract
Limitation on Dispositions. No Restricted Person will Dispose of any of its Property (assets including, without limitationfor the avoidance of doubt, receivables and leasehold interestsany Restricted Person’s Equity in another Restricted Person (including any Restricted Joint Venture), whether now owned or hereafter acquired, or, in the case of Properties or any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Personmaterial interest therein, except:
(a) Dispositions of surplus, Property that is worthless or obsolete or worn out Property and Property in the ordinary course of business, which is no longer used or useful in the conduct of the its business or which is replaced by Property of the Borrower or any Subsidiary equal suitability and value;
(i) inventory that is sold in the ordinary course of business;
business on a commercial arm’s-length basis, (bii) sales of (and the lapse, abandonment, cancellation or non-exclusive license granting of any option or other right to purchase, lease or otherwise acquire) power, renewable natural gas (including renewable natural gas in storage and all rights thereto), renewable energy credits (including RINS and LCFS credits), energy, capacity or ancillary services or products or other inventory, (iii) goods held for sale and immaterial Intellectual Property assets in the ordinary course of business;
(c) (i) Dispositions between or among the Borrower and the Guarantors or (ii) Dispositions by any Restricted Joint Venture to the Borrower or any Guarantor;
(d) (i) sales or non-exclusive grants of inventory licenses or goods held for sale sublicenses to use the patents, trade secrets, know-how and other intellectual property, and licenses, leases or subleases of other assets, of any Restricted Person to the extent not materially interfering with the business of such Restricted Person; and (ii) leases, subleases, licenses or sublicenses of property in the ordinary course of business;
(d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) business and Section 6.03(h))which do not materially interfere with the business of the Restricted Persons;
(e) the Disposition of past due accounts receivable in the ordinary course of business on a commercial arm’s-length basis (and not in connection with any sale or issuance of (i) the Equity Interests of any Subsidiary to Holdings, the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Partyaccounts receivable financing);
(f) any Disposition Dispositions of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewithotherwise permitted herein;
(g) transfers of condemned Property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same extent constituting a Disposition, Investments not prohibited by Section 7.10; 83 [OPAL Fuels Credit Agreement]
(whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty h) to the respective insurer of such Property as part of an insurance settlementextent constituting a Disposition, any Casualty Event;
(hi) Dispositions of CNG Fueling Stations to the extent required pursuant to any contractual obligation of a Restricted Person entered into with any non-Affiliated Person in the ordinary course of business (including any offtake party or land owner);
(j) Dispositions of investment tax credits or any other tax, environmental or other incentive credits for fair market value (together with any associated interparty agreements or other agreements reasonably necessary to mitigate potential risk of recapture of such investment tax credits or other credits);
(k) termination or unwinding of any Swap;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(i) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;
(k) dispositions arrangements and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business Organizational Documents of the Borrower or any of the Subsidiaries;
(l) Dispositions of Cash Equivalentsjoint venture;
(m) Dispositions the liquidation or dissolution of Property any Subsidiary of Borrower (other than Equity Interests i) the board of directors (or all or substantially all a Responsible Officer in lieu of the assets board of Holdingsdirectors) of the Borrower determines in good faith that such liquidation or dissolution is in the best interest of the Borrower and is not materially disadvantageous to the Lenders, (ii) in the case of a liquidation or dissolution of a Restricted Person, the Borrower or any of their Subsidiaries) provides written notice to the extent Administrative Agent of such liquidation or dissolution promptly upon, and in any event not later than thirty (30) days following, the effective date thereof (or such longer period as may be agreed by the Administrative Agent), and (iii) all assets and property of such Subsidiary (after payment or other provision for satisfaction of the creditors thereof) are transferred to a Guarantor (provided, however, that (ix) if such liquidation or dissolution is of a Restricted Person that is not directly or indirectly wholly-owned by Borrower, such assets and property is exchanged for credit against shall be transferred to the purchase price of similar replacement property or (ii) the proceeds equity holders of such Disposition are promptly applied to the purchase price of such replacement property;Subsidiary ratably in accordance with their respective Equity interests therein); and
(n) Dispositions not otherwise permitted under this Section 7.5; provided that, the unwinding of any Swap Contract in accordance with its terms;
Net Cash Proceeds (o) to the extent constituting Dispositions, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09; and
(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions of machinery and equipment in connection when aggregated with the closing of Net Cash Proceeds arising from any other such sale or disposition) do not in any Fiscal Year exceed, in the Shoals Facility to the Mexican Subsidiaries or otherwiseaggregate, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing$10,000,000.
Appears in 1 contract
Limitation on Dispositions. No Restricted Person will Dispose of any of its Property (including, without limitation, receivables and leasehold interests), whether now owned material assets or hereafter acquired, or, in the case of properties or any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Personmaterial interest therein, except:
(a) ordinary course Dispositions of surplus, equipment or personal property that is worthless or obsolete or worn out Property and Property out, that is no longer used or useful in the conduct of the business its business, or that is replaced by equipment of the Borrower or any Subsidiary in the ordinary course of businessat least equal suitability and value;
(b) the lapse, abandonment, cancellation or non-exclusive license Dispositions of any immaterial Intellectual Property inventory (including oil and gas sold as produced and seismic data) that is sold in the ordinary course of business;
(c) Dispositions of inventory defaulted notes or goods held for sale accounts receivable in connection with the compromise or collection thereof and not in connection with any financing transaction, in each case, in the ordinary course of business and to the extent not prohibited by Section 5.8;
(d) Dispositions of cash and Cash Equivalents in the ordinary course of business;
(de) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h));
(e) any sale or issuance of property of (i) the Equity Interests of Borrower that is transferred to any Subsidiary to Holdings, of the Borrower or any Subsidiary that is a Guarantor and (ii) the Equity Interests of any Subsidiary of the Borrower that is not a Loan Party transferred to the Borrower or to any other Subsidiary of the Borrower that is not a Loan PartyGuarantor;
(f) any Disposition Dispositions pursuant to Distributions permitted under Section 5.6;
(g) the granting of other assets for fair market value not Liens permitted by Section 5.2;
(h) farmouts in the ordinary course of business of undeveloped acreage and assignments in connection with such farmouts;
(i) Dispositions of interests in Oil and Gas Properties, or portions thereof, to exceed $2,500,000 per fiscal year of Holdingswhich no Proved Reserves are attributed; provided that (i) such Disposition is made for fair consideration and (ii) no Default or Event of Default Borrowing Base Deficiency then exists or would result therefrom;
(j) Borrowing Base Property Dispositions and Borrowing Base Hedging Contract Liquidations; provided that:
(i) except with respect to Casualty Events, no Default then exists or would result therefrom;
(ii) at least 75% of the total consideration for any received in respect of such Borrowing Base Property Disposition or Borrowing Base Hedging Contract Liquidation shall be cash or Cash Equivalents;
(iii) the consideration received by in respect of such Borrowing Base Property Disposition or Borrowing Base Hedging Contract Liquidation shall be equal to or greater than the fair market value of (A) the Oil and Gas Properties or the Subsidiary of the Borrower and the Subsidiaries in subject of such Borrowing Base Property Disposition or (B) the form Hedging Contract the subject of cash and Cash Equivalents such Borrowing Base Hedging Contract Liquidation (in each case, free and clear as reasonably determined by the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(g) transfers of condemned Property as a result Responsible Officer of the exercise of “eminent domain” or other similar policies Borrower certifying to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Property as part of an insurance settlement;
(h) 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 agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(i) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivableseffect);
(iv) if (after giving effect to such Borrowing Base Property Disposition or Borrowing Base Hedging Contract Liquidation) the aggregate Borrowing Base Value of all of the Borrowing Base Property Dispositions and Borrowing Base Hedging Contract Liquidations under this subsection (j) transfers and the following subsection (k) since the immediately preceding Scheduled Determination of Property by the Borrowing Base exceeds five percent (i5%) Holdings or of the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to HoldingsBorrowing Base then in effect, the Borrower shall deliver to the Administrative Agent five (5) Business Days’ prior written notice (or such shorter period as the Administrative Agent may agree to in its discretion) of such Borrowing Base Property Disposition or Borrowing Base Hedging Contract Liquidation and shall provide the Administrative Agent with such information in connection therewith as the Administrative Agent may reasonably request;
(v) if a Borrowing Base Deficiency exists after any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party resulting reduction in the Borrowing Base pursuant to (A) HoldingsSection 2.8(f), the Borrower or shall prepay Borrowings in accordance with Section 2.7(d); and
(vi) if any such Disposition is of a Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Partyof the Borrower, such Disposition shall include all the Equity in such Subsidiary;
(k) dispositions and/or terminations of Borrowing Base Hedging Contract Liquidations in addition to those allowed under the preceding subsection (j), but only to the extent such additional Borrowing Base Hedging Contract Liquidations are required under Section 5.3(b);
(l) Dispositions among or between the Borrower and Guarantors;
(m) leases, subleases, licenses and or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Borrower and the Borrower or any of the Subsidiaries;
(l) Dispositions of Cash Equivalents;
(m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) 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 propertyRestricted Persons taken as a whole;
(n) the unwinding Dispositions of any Swap Contract in accordance with its termspersonal property subject to casualty, condemnation or similar events;
(o) licensing, on a non-exclusive basis, of patents, trademarks, copyrights and other intellectual property rights, in each case, which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change;
(p) the lapse or abandonment of patents, trademarks, copyrights and other intellectual property rights, in each case, which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change (q) to the extent constituting Dispositions, (i) Liens Distributions permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) 5.6 and Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09; and
(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions of machinery and equipment in connection with the closing of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing.5.7;
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Limitation on Dispositions. 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 Subsidiary, or issue or sell any Equity Interests of such Subsidiary to any Person, except:
(a) Dispositions The sale or Disposition of surplus, obsolete or worn out Property machinery and Property equipment no longer used or useful in the conduct of the business of the Borrower or any Subsidiary in the ordinary course of businessBorrower;
(b) the lapse, abandonment, cancellation The Disposition of obsolete or nonworn-exclusive license of any immaterial Intellectual Property out property in the ordinary course of business;
(c) Dispositions The sale of inventory or goods held for sale and immaterial assets, in each case in the ordinary course of business;
(d) Dispositions permitted by Section 6.03 (excluding Section 6.03(e) and Section 6.03(h))The sale or issuance of any Borrower’s Equity Interests to any Loan Party;
(e) Dispositions resulting from any sale taking or issuance of (i) the Equity Interests condemnation of any Subsidiary to Holdings, Property of the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of by any Subsidiary that is not Governmental Authority or any assets subject to a Loan Party to any other Subsidiary that is not a Loan Partycasualty;
(f) any Any Disposition of other assets for fair market value not to exceed $2,500,000 per fiscal year of Holdings; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) at least 75% of the total consideration for any such Disposition shall be received by the Borrower and the Subsidiaries in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by Section 6.02) and (iii) the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewithwith a sale and leaseback permitted pursuant to Section 7.06;
(g) transfers Dispositions of condemned Property as a result other property in any fiscal year of the exercise Borrowers, so long as such property, together with all other property Disposed of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise)during such fiscal year, and transfers of properties that shall have been subject to a casualty to the respective insurer of such Property as part of an insurance settlementfair market value not exceeding $500,000;
(h) 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 agreements and similar binding agreements; provided that the requirements of Section 2.07(a), to the extent applicable, are complied with in connection therewithPurplebee’s Disposition;
(i) licensing, on a non-exclusive basis, intellectual property rights in the ordinary course of business;
(j) leasing or subleasing assets in the ordinary course of business;
(i) the lapse of intellectual property of a Borrower to the extent not economically desirable in the conduct of its business or (ii) the abandonment of intellectual property rights in the ordinary course of business so long as such lapse is not adverse to the interests of the Lenders;
(l) any involuntary loss, damage or destruction of property;
(m) Dispositions of cash and cash equivalents in the ordinary course of business;
(n) the sale or discount, in each case without recourse and in the ordinary course of business, by any Loan Party of overdue accounts receivable or notes receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent or in connection with customary industry practice (the bankruptcy or reorganization of the applicable account debtors and not as part dispositions of any bulk sale securities received in any such bankruptcy or financing of receivables);
(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;
(k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of the Subsidiaries;
(l) Dispositions of Cash Equivalents;
(m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) 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;
(n) the unwinding of any Swap Contract in accordance with its termsreorganization;
(o) Dispositions of any property or assets to the extent constituting Dispositionsan Affiliate of any Borrower; provided, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09that such Disposition to an Affiliate of a Borrower occur in such Borrower’s ordinary course of business; and
(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions settlement of machinery and equipment in connection with the closing of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoingdisputes.
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Limitation on Dispositions. No Loan Party nor any of its respective Subsidiaries will, except as allowed in Section 7.2, Dispose of any of its Property (includingassets or properties or any interest therein, without limitationor discount, receivables sell, pledge or assign any notes payable to it, accounts receivable or future income or engage in any sale and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any Equity Interests of such Subsidiary to any Personleaseback transaction, except, to the extent not otherwise forbidden under the Security Documents:
(a) Dispositions of surplus, equipment that is worthless or obsolete or worn out Property which is replaced by equipment of equal suitability and Property no longer used or useful in the conduct value;
(b) Dispositions of the business of the Borrower or any Subsidiary inventory (including oil and gas sold as produced and seismic data) which is sold in the ordinary course of business;
(b) the lapse, abandonment, cancellation or non-exclusive license of any immaterial Intellectual Property in the business on ordinary course of businesstrade terms;
(c) Dispositions of inventory assets by Borrower to another Borrower for bona fide business reasons; provided, however, the security interest created in favor of the Administrative Agent for the benefit of the Secured Parties in any such assets shall not be released, impaired or goods held for sale affected 80 [FIFTH AMENDED AND RESTATED CREDIT AGREEMENT] thereby and, prior to making any such Disposition, the Borrowers shall have taken all actions necessary or desirable to establish and maintain the Administrative Agent’s first lien perfected security interest therein (including, without limitation, amending any mortgages to the extent applicable);
(d) Investments permitted in accordance with Section 7.8;
(e) Farm outs in the ordinary course of business;
business of undeveloped acreage or undrilled depths not constituting Proved Reserves; provided, however, in the event of a farm out (dwhether in connection with a joint venture or otherwise) Dispositions permitted by Section 6.03 of at least twenty-five thousand (excluding Section 6.03(e25,000) net acres or with respect to which any Loan Party or Subsidiary thereof (or any Affiliate on behalf of such Loan Party or Subsidiary) receives proceeds (whether in the form of Cash, Cash Equivalents, drilling carry or otherwise) in excess of ten million Dollars ($10,000,000), then such farm out shall be subject to the prior written approval of the Majority Lenders (not to be unreasonably withheld, conditioned or delayed) and Section 6.03(h));
which such approval shall be deemed given to the extent the Majority Lenders fail to confirm in writing any rejection within ten (e10) Business Days of receiving a written request therefor from any sale or issuance of (i) the Equity Interests of any Subsidiary to Holdings, the Borrower or any Subsidiary Guarantor and (ii) the Equity Interests of any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(f) Dispositions of up to 7.5% of the interests in the Ship Shoal 150 Well to Charter IV in accordance with the plan fully described on Schedule B to the officer’s certificate dated as of the Closing Date and delivered pursuant to Section 4.1(d)(ii) (the “Charter IV Incentive Plan”) and assignments of overriding royalty interests to certain key employees in accordance with the ORRI Plan (and the limitations set forth in the definition thereof) as in effect on the date hereof;
(g) Dispositions of any Disposition of other assets Oil and Gas Properties to which no Proved Reserves are attributed that are sold for fair market value for Cash consideration to a Person who is not to exceed $2,500,000 per fiscal year of Holdingsan Affiliate; provided that (i) no Default or Event of Default exists has occurred and is continuing on the date of such sale or would result therefrom, (ii) at least 75% of the total consideration for any from consummating such Disposition shall be received by the Borrower sale and the Subsidiaries Net Disposition Proceeds therefrom are applied in the form of cash and Cash Equivalents (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted by accordance with Section 6.02) and (iii) the requirements of Section 2.07(a2.7(a), to the extent applicable, are complied with in connection therewith;
(g) transfers of condemned Property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Property as part of an insurance settlement;; and
(h) Dispositions of Investments any Oil and Gas Properties to which Proved Reserves are attributed that are sold for fair market value Cash consideration to a Person who is not an Affiliate not in joint ventures to the extent required byaggregate (taking into account all such sales of all Loan Parties and Subsidiaries) in excess of $10,000,000 for all such Dispositions or series of related Dispositions in any twelve (12) month period, the sale of which will not materially impair or made pursuant to, customary buy/sell arrangements between diminish the joint venture parties set forth in joint venture agreements and similar binding agreementsvalue of the Collateral; provided that no Default or Event of Default has occurred and is continuing on the requirements date of Section 2.07(a), to the extent applicable, are complied with in connection therewith;
(i) the such sale or discount, in each case without recourse would result from consummating such sale and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(j) transfers of Property by (i) Holdings or the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Holdings, the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary that is not a Loan Party to (A) Holdings, the Borrower or any Subsidiary Guarantor for no more than fair market value or (B) any other Subsidiary that is not a Loan Party;
(k) dispositions and/or terminations of leases, subleases, licenses and sublicenses in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of the Subsidiaries;
(l) Dispositions of Cash Equivalents;
(m) Dispositions of Property (other than Equity Interests or all or substantially all of the assets of Holdings, the Borrower or any of their Subsidiaries) 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 Net Disposition Proceeds therefrom are promptly applied to the purchase price of such replacement property;
(n) the unwinding of any Swap Contract in accordance with its terms;
(o) to the extent constituting Dispositions, (i) Liens permitted by Section 6.02, (ii) Restricted Payments permitted by Section 6.05 (excluding Section 6.05(h)),(iii) Investments permitted by Section 6.07, and (iv) Sale and Leasebacks permitted by Section 6.09; and
(p) (i) the Shoals Facility Lease Termination and (ii) Dispositions of machinery and equipment in connection with the closing of the Shoals Facility to the Mexican Subsidiaries or otherwise, including any further Dispositions of such machinery and equipment by the Mexican Subsidiaries. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.04 to any Person that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effectuate the foregoing2.7(a).
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