Asset Dispositions, etc. ADT Limited will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable, Capital Stock of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"), unless (a) such Asset Sale is permitted by Section 4.2.9; or (b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or (c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company (i) such Asset Sale is in the ordinary course of business; or (ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or (d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or (e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 2 contracts
Samples: Guaranty (Adt Limited), Credit Agreement (Adt Limited)
Asset Dispositions, etc. ADT Limited The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets material asset (including accounts receivable, Capital Stock receivable and capital stock of Subsidiaries of ADT Limited and other InvestmentsPrincipal Subsidiaries) to any Person (an "Asset Sale")Person, unlessexcept:
(a) sales of assets (including, without limitation, Vessels) so long as:
(i) the aggregate net book value of all such Asset Sale is permitted assets sold during each 12-month period commencing on the Effective Date, and each anniversary of the Effective Date, does not exceed an amount equal to the greater of (x) 7.5% of Stockholders’ Equity as at the end of the last Fiscal Quarter, and (y) $250,000,000, provided however, that in no event shall the aggregate net book value of fixed assets disposed over the life of the Agreement (determined as of the date of any such sale) exceed 25% of Stockholders’ Equity as at the end of the most recently completed fiscal quarter; and
(ii) to the extent any asset has a fair market value in excess of $25,000,000 the Borrower or Subsidiary selling such asset receives consideration therefor at least equal to the fair market value thereof (as determined in good faith by Section 4.2.9; or(x) in the case of any Vessel, the board of directors of the Borrower and (y) in the case of any other asset, an officer of the Borrower or its board of directors);
(b) sales of capital stock of any Principal Subsidiary of the Borrower so long as a sale of all of the assets of such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; orSubsidiary would be permitted under the foregoing clause (a);
(c) with respect to assets sales of capital stock of any Subsidiary other than the Capital Stock of the Borrower and any Intermediate Parent Companya Principal Subsidiary;
(id) such Asset Sale is sales of other assets in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); orand
(e) sales of assets between or among the Borrower and Subsidiaries of the Borrower. provided, that at all parties to such Asset Sale are either times while the FEC Interest Equalization is in effect, the Borrower or a wholly-owned Subsidiary Guarantorof the Borrower shall maintain ownership of the Purchased Vessel unless FEC otherwise consents.
Appears in 2 contracts
Samples: Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD)
Asset Dispositions, etc. ADT Limited Holdings and the Borrowers will not, and will not permit any of its their Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, convey or grant options, warrants dispose of (in each case in one transaction or other rights with respect to, series of transactions) all or any substantial part of its assets (including accounts receivableAccounts, Capital Stock Inventory and Equity Interests of Subsidiaries of ADT Limited the Borrowers and other Investmentstheir Subsidiaries) to any Person (an "Asset Sale")Person, unlessexcept:
(a) if such Asset Sale sale, transfer, lease, contribution, conveyance or disposition is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is of Inventory in the ordinary course of business or (ii) in respect of cash or Cash Equivalent Investments in the ordinary course of business; or;
(b) in respect of (i) Equipment that is worn out or obsolete and is sold or disposed of in the ordinary course of business of the Borrowers and their Subsidiaries or (ii) assets that are subject to damage or destruction, or a condemnation proceeding instituted by a Governmental Authority;
(Ac) if such Asset Sale consists sale, transfer, lease, conveyance or disposition is a Permitted Disposition;
(d) if such sale, transfer, lease, conveyance or other disposition is permitted by Section 7.2.9;
(e) sales, transfers or dispositions of accounts receivable in the sale ordinary course of business in connection with the collection or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale compromise thereof (other than in connection with a sale factoring programs, receivables programs or disposition other similar programs);
(f) termination of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash leases or subleases (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Saleother than Capitalized Lease Obligations), licenses, or Cash Equivalent Investments sublicenses in the ordinary course of business;
(g) sales, transfers or dispositions of assets by a Subsidiary of Holdings to either Borrower or any Wholly Owned Subsidiary; provided, that (i) no Default or Event of Default shall have occurred and (C) the net book value of be continuing immediately before or after giving effect to any such assetssale, together with the net book value of all other assets subject to an Asset Sale permitted under this clause transfer or disposition, (ii) if the transferor of such property is a Loan Party the transferee must be either be a Borrower or another Loan Party and (or clause (c)(iiiii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or
(d) each party to any such Asset Sale is either ADT Limited or transaction involving a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company)Holdings that is not a Loan Party shall be made in compliance with Section 7.2.12; orand
(eh) all parties to such Asset Sale are either the Borrower sales, transfers or dispositions of assets by a Subsidiary Guarantorof Holdings that is not a Loan Party to another Subsidiary of Holdings that is not a Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (Applied Medical Corp), Credit Agreement (Applied Medical Corp)
Asset Dispositions, etc. ADT Limited The Company will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable, Capital Stock receivable and capital stock of Subsidiaries of ADT Limited and other InvestmentsSubsidiaries) to any Person (an "Asset Sale")Person, unless
(a) such Asset Sale sale, transfer, lease, contribution or conveyance is in the ordinary course of its business or is permitted by Section 4.2.9; or9.3;
(b) such Asset Sale sale, transfer, lease, contribution or conveyance is a Permitted Strategic Sale disposition of real estate or Permitted Auction Business Sale; orwarehouses owned or leased on the date hereof made within two years after the date hereof in connection with the Company's warehouse consolidation plan;
(c) with respect to assets other than any real estate or warehouses purchased after the Capital Stock of date hereof, such sale is pursuant to a sale-leaseback arrangement so long as a leasehold mortgage is granted with respect thereto in form satisfactory to the Borrower and any Intermediate Parent CompanyAdministrative Agent;
(id) such Asset Sale with respect to any sale, transfer, lease, contribution or conveyance which is in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than made in connection with a sale or disposition the acquisition of assets by the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset SaleCompany, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject sold, transferred, leased, contributed or conveyed otherwise than in the ordinary course of business by the Company or any of its Subsidiaries pursuant to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Closing Date, does not exceed $130,000,00010,000,000;
(e) with respect to any sale, transfer, lease, contribution or conveyance (other than any sale, transfer, lease, contribution or conveyance of assets of the ProSource national accounts division) which is made in connection with the acquisition of assets by the Company, the net book value of such assets does not exceed the net book value of the assets acquired by the Company in connection with any such acquisition;
(f) such sale, transfer, lease, contribution or conveyance is of obsolete or unuseful Equipment and the aggregate proceeds of all such sales, transfers, leases, contributions or conveyance of such Equipment is $5,000,000 or less in any fiscal year;
(g) such sale, transfer, lease, contribution or conveyance shall be of Receivables Program Assets pursuant to a Qualified Receivables Transaction to a Receivables Subsidiary; or
(dh) each party such sale, transfer, lease, contribution or conveyance shall be of Receivables Program Assets pursuant to such Asset Sale is either ADT Limited or a Qualified Receivables Transaction by a Receivables Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary GuarantorSpecial Purpose Vehicle.
Appears in 2 contracts
Samples: Credit Agreement (Ameriserve Transportation Inc), Credit Agreement (Nebco Evans Holding Co)
Asset Dispositions, etc. ADT Limited Each Borrower will not, and will not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all any property, business or assets of the Parent, any Subsidiary Borrower or any substantial part of its assets their respective Subsidiaries (including accounts receivable, receivable and Capital Stock of Subsidiaries of ADT Limited and other InvestmentsStock) to any Person (an "Asset Sale")Person, unless
(a) any such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sale, transfer, lease, contribution or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale conveyance is in the ordinary course of business; orits business (including sales of used Vehicles and the customary franchising activities of the Borrowers) or is permitted by Section 8.2.9 or clauses (e) through (i) of Section 8.2.5;
(iib) any such issuance is an issuance of Capital Stock of the Parent or of options or warrants in respect of such Capital Stock;
(c) (i) (A) if any such Asset Sale consists of the sale sale, transfer or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale conveyance is for not less than the Fair Market Value fair market value of the assets sold so sold, transferred or conveyed and (as determined B) in good faith by the event the fair market value of such assets exceeds $5,000,000, the determination of the Board of Directors of ADT Limited the Parent or a committee thereof, whose determination shall be thereof is evidenced by a certified written resolution of such Board or such committee) and and, except in the case of Non-Counted Assets, the consideration received by ADT Limited the relevant Subsidiary Borrower or the relevant Subsidiary of such Subsidiary Borrower in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) thereof consists of at least 7580% cash or Cash Equivalent Investments, (including ii) any such consideration not consisting of cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments (including consideration received in the sale, transfer or conveyance of Non- Counted Assets) is an Investment that would be permitted by Section 8.2.5 and (Ciii) the net book fair market value of such assetsassets (other than Non-Counted Assets), together with the net book aggregate fair market value of all other assets subject (other than Non-Counted Assets) sold, transferred or conveyed pursuant to an Asset Sale permitted under this clause (iic) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective DateFiscal Year such assets are sold, transferred or conveyed, does not exceed $130,000,00010,000,000; provided, however, that no such sale, transfer or conveyance shall be permitted to be made if immediately before or after giving effect thereto, any Default shall have occurred and be continuing; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary without limiting the effect in any manner of ADT Limited (other than the Borrowerprovisions of Article IX, any Subsidiary Guarantor such sale, transfer or any Intermediate Parent Companyconveyance of Vehicles is as a result of an Amortization Event (as defined in the Base Indenture); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Asset Dispositions, etc. ADT Limited The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable, Capital Stock receivable and capital stock of Subsidiaries of ADT Limited and other InvestmentsSubsidiaries) to any Person (an "Asset Sale")other than to the Borrower or a Restricted Subsidiary, unless
(a) such Asset Sale sale, transfer, lease, contribution or conveyance is (i) in the ordinary course of its business, (ii) permitted by Section 4.2.98.2.9 or (iii) of CES or its Subsidiaries or any of their respective assets; or
(b) in the event such Asset Sale is sale, transfer, lease, contribution or conveyance involves the Domestic Gas Reserves, such sale, transfer, lease, contribution or conveyance is, individually and taken together with all prior sales, transfers, leases, contributions or conveyances within the same calendar year, a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower such sale, transfer, lease, contribution or conveyance is not covered by clauses (a) or (b) above and any Intermediate Parent Company
(i) such Asset Sale is in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale Borrower or transfer of the Capital Stock of a its Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the receives consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Salesale, ADT Limited transfer, lease, contribution or conveyance at least equal to the relevant fair market value of assets being sold, transferred, leased, contributed or conveyed, (ii) at least sixty percent (60%) of the consideration received by the Borrower or such Subsidiary has entered into is in the form of cash or cash equivalents, (iii) in the case of any such sale, transfer, lease, contribution or conveyance by a legally binding agreement for the sale Subsidiary that is not an Incremental Pledged Subsidiary, an amount equal to 100% of such securities and such securities are sold Net Available Cash therefrom is either reinvested in Additional Assets of a Dedicated Subsidiary within sixty 365 days of such Asset Sale), Sale or Cash Equivalent Investments applied by the Borrower as provided herein to prepay the Loans and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted loans outstanding under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective DateAgreement, does not exceed $130,000,000; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited so long as any Net Available Cash from Dedicated Assets (other than Incremental Dedicated Assets) is applied by the BorrowerBorrower as provided in Section 2.2.2 and (iv) in the case of any such sale, any Subsidiary Guarantor transfer, lease, contribution or any Intermediate Parent Companyconveyance by an Incremental Pledged Subsidiary, an amount equal to 100% of Net Available Cash therefrom is applied by the Borrower as provided in Section 3.1.1(e); or.
(eaa) all parties There shall be added to such Asset Sale are either the Borrower or Credit Agreement a Subsidiary Guarantor.new Section 10.9 reading in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Asset Dispositions, etc. ADT Limited The Borrower and the Parent will not, and will not permit any of its their respective Subsidiaries to, sell, transfer, lease, contribute or otherwise conveyconvey or dispose of, or grant options, warrants or other rights with respect toto (a "Disposition"), all or any substantial part of its assets (including accounts receivable, Capital Stock receivable and capital stock of Subsidiaries of ADT Limited and other InvestmentsSubsidiaries) to any Person (an "Asset Sale"other than the Borrower), unlessexcept
(a) if such Asset Sale sale, transfer, lease, contribution or conveyance is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is Inventory in the ordinary course of its business;
(b) if such Disposition is a Permitted Disposition;
(c) if such Disposition is of (i) the Instrumentation Segment or of operations currently classified as discontinued under GAAP, (ii) the Delroyd operations to Ameridrives International, L.P., a Delaware limited partnership, (iii) the sale of Roltra Xxxxx, or (iv) any assets of a Subsidiary of the Borrower to the Borrower; or
(ii) (Ad) if such Asset Sale consists of the sale assets are worn or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) obsolete and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject sold, transferred, leased, contributed or conveyed by the Borrower, the Parent or any of their respective Subsidiaries pursuant to an Asset Sale permitted under this clause (ii) (during the Fiscal Year in which such assets are to be sold, transferred, leased, contributed or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Dateconveyed, does not exceed $130,000,000500,000 in the aggregate; or
(d) each party to provided, however, that so long as any such Asset Sale is either ADT Limited assets sold, transferred, leased, contributed or a Subsidiary of ADT Limited (other than conveyed by the Borrower, any Subsidiary Guarantor the Parent or any Intermediate of their respective Subsidiaries pursuant to this clause are used by the Borrower, the Parent Company); or
(e) all parties to or any of their Subsidiaries for the replacement thereof within 180 days, such Asset Sale are either amount shall not count toward the Borrower or a Subsidiary Guarantor$500,000 ceiling.
Appears in 1 contract
Asset Dispositions, etc. ADT Limited Each Borrower will not, and will not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all any property, business or assets of the Parent, any Subsidiary Borrower or any substantial part of its assets their respective Subsidiaries (including accounts receivable, receivable and Capital Stock of Subsidiaries of ADT Limited and other InvestmentsStock) to any Person (an "Asset Sale")Person, unless
(a) any such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sale, transfer, lease, contribution or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale conveyance is in the ordinary course of business; orits business (including sales of used Vehicles and the customary franchising activities of the Borrowers) or is permitted by Section 8.2.9 or clauses (e) through (i) of Section 8.2.5;
(iib) any such issuance is an issuance of Capital Stock of the Parent or of options or warrants in respect of such Capital Stock;
(c) (i) (A) if any such Asset Sale consists of the sale sale, transfer or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale conveyance is for not less than the Fair Market Value fair market value of the assets sold so sold, transferred or conveyed and (as determined B) in good faith by the event the fair market value of such assets exceeds $10,000,000, the determination of the Board of Directors of ADT Limited the Parent or a committee thereof, whose determination shall be thereof is evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited the relevant Subsidiary Borrower or the relevant Subsidiary of such Subsidiary Borrower in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) thereof consists of at least 7580% cash or Cash Equivalent Investments, (including ii) any such consideration not consisting of cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments is an Investment that would be permitted by Section 8.2.5 and (Ciii) the net book fair market value of such assets, together with the net book aggregate fair market value of all other assets subject sold, transferred or conveyed pursuant to an Asset Sale permitted under this clause (iic) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective DateFiscal Year such assets are sold, transferred or conveyed, does not exceed $130,000,00010,000,000; provided, however, that no such sale, transfer or conveyance shall be permitted to be made if immediately before or after giving effect thereto, any Default shall have occurred and be continuing; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary without limiting the effect in any manner of ADT Limited (other than the Borrowerprovisions of Article IX, any Subsidiary Guarantor such sale, transfer or any Intermediate Parent Companyconveyance of Vehicles is as a result of an Amortization Event (as defined in the Base Indenture); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Asset Dispositions, etc. ADT Limited The Borrower will not, and will not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all any property, business or assets of the Borrower or any substantial part of its assets Subsidiaries (including accounts receivable, receivable and Capital Stock of Subsidiaries of ADT Limited and other InvestmentsStock) to any Person (an "Asset Sale")Person, unless:
(a) any such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sale, transfer, lease, contribution or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale conveyance is in the ordinary course of business; orits business (including sales of used Vehicles and the customary franchising activities of the Borrower) or is permitted by Section 8.2.9 or clauses (e) through (i) of Section 8.2.5;
(iib) any such issuance is an issuance of Capital Stock of the Borrower or of options or warrants in respect of such Capital Stock;
(c) (i) (A) if any such Asset Sale consists of the sale sale, transfer or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale conveyance is for not less than the Fair Market Value fair market value of the assets sold so sold, transferred or conveyed and (as determined B) in good faith by the event the fair market value of such assets exceeds $10,000,000, the determination of the Board of Directors of ADT Limited the Borrower or a committee thereof, whose determination shall be thereof is evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited the Borrower or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) thereof consists of at least 7580% cash or Cash Equivalent Investments, (including ii) any such consideration not consisting of cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments is an Investment that would be permitted by Section 8.2.5 and (Ciii) the net book fair market value of such assets, together with the net book aggregate fair market value of all other assets subject sold, transferred or conveyed pursuant to an Asset Sale permitted under this clause (iic) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective DateFiscal Year such assets are sold, transferred or conveyed, does not exceed $130,000,00010,000,000; provided, however, that no such sale, transfer or conveyance shall be permitted to be made if immediately before or after giving effect thereto, any Default shall have occurred and be continuing; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary without limiting the effect in any manner of ADT Limited (other than the Borrowerprovisions of Article IX, any Subsidiary Guarantor such sale, transfer or any Intermediate Parent Companyconveyance of Vehicles is as a result of an Amortization Event (as defined in the Base Indenture); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Asset Dispositions, etc. ADT Limited will not(a) No Obligor shall, and will not nor shall it permit any of its Obligor Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants make any Asset Sale (other than to another Obligor or other rights with respect to, all such Subsidiary) (i) unless such Obligor or any substantial part such Subsidiary receives consideration at the time of its assets (including accounts receivable, Capital Stock of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"), unless
(a) such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect at least equal to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold or otherwise disposed of and at least 85% of the consideration received by such Obligor or such Subsidiary from such Asset Sale is in the form of cash (in Dollars) and no portion thereof shall consist of inventory or accounts receivable or other property that would become subject to a Lien held by any creditor of such Obligor or of any such Subsidiary other than the Lenders, the New Tranche A Notes Holders or the New Tranche B Notes Holders; provided, however, that the amount of any cash equivalent or note or other obligation received by such Obligor or such Subsidiary from the transferee in any such transaction that is converted within 45 days by such Obligor or such Subsidiary into cash will be deemed upon such conversion to be cash for purposes of this provision; (ii) to the extent such Asset Sale involves Collateral, PCI or the Borrower shall cause the aggregate cash proceeds received by such Obligor or such Subsidiary in respect of such Asset Sale which are allocated to the Collateral, net of the items set forth in clauses (i) through (iii) of the definition of Net Proceeds (the "Collateral Proceeds") to be deposited with the Collateral Agent in the Intercreditor Collateral Account as and when received by such Obligor or any such Subsidiary for application in accordance with the Common Security and Intercreditor Agreement and this Agreement; and (iii) the Net Proceeds received by such Obligor or such Subsidiary from any Asset Sale are applied in accordance with the following paragraphs.
(b) The Borrower shall apply 100% of the aggregate amount of Net Proceeds or Collateral Proceeds from each and every Asset Sale, as the case may be, subject to Section 3.1.2 and the provisions, if applicable, of the Common Security and Intercreditor Agreement, to pro rata prepay (at the same time as New Tranche A Notes shall be redeemed in respect of an Asset Sale (as such term is defined in the New Tranche A Notes Indenture) pursuant to Section 1009 and Article Eleven of the New Tranche A Notes Indenture) the Term Loans in each case then outstanding at a price equal to 100% of the principal amount thereof, plus accrued interest thereon to the date of prepayment.
(c) Until such time, if any, as the Net Proceeds from any Asset Sale are applied in accordance with this covenant, such Net Proceeds will be segregated from the other assets of each Obligor and each Obligor Subsidiary and invested in cash or Eligible Investments.
(d) No Obligor will, and nor will it permit any of its Obligor Subsidiaries to, create or permit to exist or become effective any consensual restriction other than restrictions not more restrictive, taken as a whole (as determined in good faith by the Board Boards of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset SalePCI), than those in effect under the Exit Facility or Cash Equivalent Investments and (C) any other Indebtedness permitted by Section
7.1.1 that would materially impair the net book value ability of such assets, together any Obligor or any Obligor Subsidiary to comply with the net book value provisions of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); orSection.
(e) all parties If at any time any non-cash consideration permitted by this Section 7.2.6 (other than any such consideration consisting of inventory, accounts receivable and certain related assets securing or permitted to such secure the Exit Facility) is received by any Obligor or Obligor Subsidiary, as the case may be, in connection with any Asset Sale of assets permitted by this Section 7.2.6 which includes Collateral, such non-cash consideration shall be made subject to the Lien of the Security Documents in the manner contemplated in the Common Security and Intercreditor Agreement to the extent of the purchase price allocated to the Collateral. If and when any such non-cash consideration received from any Asset Sale (whether or not relating to Collateral) is converted into or sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds or Collateral Proceeds thereof shall be applied in accordance with this Section 7.2.6 and this Agreement.
(f) All Insurance Proceeds and all Net Awards required to be delivered to the Collateral Agent pursuant to any Security Document shall constitute Trust Moneys and shall be delivered, or caused to be delivered, by each Obligor or each Obligor Subsidiary, as the case may be, to the Collateral Agent promptly after receipt by any Obligor or Obligor Subsidiary and be deposited into the appropriate Intercreditor Collateral Account and applied in accordance with the applicable provisions of the Common Security and Intercreditor Agreement. Insurance Proceeds and Net Awards so deposited that may be applied by each Obligor or each Obligor Subsidiary to effect a Restoration of the affected Collateral under the applicable Security Document may be withdrawn from the Intercreditor Collateral Account only in accordance with the applicable provisions of the Common Security and Intercreditor Agreement. Insurance Proceeds and Net Awards so deposited that are either not applied to effect a Restoration of the Borrower or a Subsidiary Guarantoraffected Collateral under the applicable Security Document may only be withdrawn in accordance with applicable provisions of the Common Security and Intercreditor Agreement.
Appears in 1 contract
Asset Dispositions, etc. ADT Limited The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets assets, whether now owned or hereafter acquired (including accounts receivable, receivable and Capital Stock of Subsidiaries of ADT Limited and other InvestmentsSubsidiaries) to any Person (an "Asset Sale")Person, unless
(a) such Asset Sale sale, transfer, lease, contribution or conveyance of such assets is (i) in the ordinary course of its business (and does not constitute a sale, transfer, lease, contribution or other conveyance of all or a substantial part of the Borrower's and its Subsidiaries' assets, taken as a whole), (ii) of obsolete or worn out property or is no longer useful in the business of the Borrower, (iii) permitted by Section 4.2.9; or7.07, or (iv) between the Borrower and one of its Subsidiaries or between Subsidiaries of the Borrower;
(b) such Asset Sale is sale, transfer, lease, contribution or conveyance constitutes (i) an Investment permitted under Section 7.05, (ii) a Permitted Strategic Sale Lien permitted under Section 7.03 or Permitted Auction Business Sale(iii) a License Exchange; orprovided that the aggregate value of all Licenses and related operating assets exchanged for Licenses from a third party pursuant to clause (c) of the definition of "License Exchange" shall not exceed $20,800,000;
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale sale, transfer, lease, contribution or conveyance of such assets is in for fair market value and the ordinary course consideration consists solely of business; or
cash, (ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds Net Disposition Proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value Net Disposition Proceeds of all other assets subject sold, transferred, leased, contributed or conveyed pursuant to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)c) since the Existing Credit Facility Effective Datedate hereof, does not exceed (individually or in the aggregate) $130,000,00050,000,000 over the term of this Agreement and (iii) an amount equal to the Net Disposition Proceeds generated from such sale, transfer, lease, contribution or conveyance is applied to prepay the Loans pursuant to the terms of Section 2.09, provided that this clause (c) shall not be applicable to any Permitted Tower Sale;
(d) such sale, transfer, lease, contribution or conveyance of such assets constitutes a Permitted Tower Sale;
(e) such sale, transfer, lease, contribution or conveyance of such assets constitutes a Permitted Infrastructure Sale/Leaseback; or
(df) each party to such Asset Sale sale, transfer, lease, contribution or conveyance is either ADT Limited or a Subsidiary of ADT Limited assets not otherwise included in the foregoing clauses (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
a) through (e) all parties and does not exceed $5,000,000 over the term of this Agreement. Any term or provision of this Section to such Asset Sale are either the contrary notwithstanding, unless otherwise consented to by the Required Lenders (including pursuant to the NWIP Undertaking) or unless the consent of the Required Lenders is not required pursuant to the NWIP Undertaking, the Borrower will not permit any License Subsidiary to, and no such License Subsidiary shall, sell, transfer, lease, contribute or a Subsidiary Guarantorotherwise convey, or grant options, warrants or other rights with respect to, any of its assets (including the Licenses or Capital Stock of such License Subsidiary).
Appears in 1 contract
Asset Dispositions, etc. ADT Limited The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise conveyconvey (including by way of merger), or grant options, warrants or other rights with respect to, all any of the Borrower's or any substantial part of its such Subsidiaries' assets (including accounts receivable, Capital Stock receivable or capital stock of Subsidiaries of ADT Limited and other InvestmentsSubsidiaries) to any Person (an "Asset Sale")Person, unless
(a) such Asset Sale sale, transfer, lease, contribution or conveyance of such assets is (i) in the ordinary course of its business (and does not constitute a sale, transfer, lease, contribution or other conveyance of all or a substantial part of the Borrower's or such Subsidiary's assets) or is of obsolete or worn out property, (ii) permitted by Section 4.2.9; or7.2.9, (iii) between Subsidiary Guarantors (other than any Designated Subsidiary) or from a Subsidiary Guarantor to the Borrower or from the Borrower to a Subsidiary Guarantor (other than a Designated Subsidiary) or (iv) of other assets of the Borrower or a Subsidiary having a value (determined based on the higher of book and fair market value) not to exceed $3,000,000 in any Fiscal Year;
(b) such Asset Sale sale, transfer, lease, contribution or conveyance of such assets (including the SLB Properties), has a value (calculated at the higher of book value or fair market value) of less than $15,000,000 in any Fiscal Year and the net proceeds of which the Borrower or a Subsidiary thereof has elected to invest or cause to be invested in Qualified Assets as provided for in the definition of "Net Disposition Proceeds"; provided, however, that in each Fiscal Year in which the value of such assets so sold, transferred, leased, contributed or conveyed is a Permitted Strategic Sale less than $15,000,000 then the difference between such value and $15,000,000 may be carried over to any succeeding Fiscal Year so long as the aggregate value of assets so sold, transferred, leased, contributed or Permitted Auction Business Sale; orconveyed in any Fiscal Year shall not exceed $25,000,000 in any Fiscal Year;
(c) with respect such sale, transfer, lease, contribution or conveyance is of Accounts pursuant to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000Permitted Receivables Transaction; or
(d) each party to such Asset Sale sale, transfer, lease, contribution or conveyance is either ADT Limited permitted by Section 7.2.5 or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary GuarantorSection 7.2.12.
Appears in 1 contract
Samples: Credit Agreement (Prosource Inc)
Asset Dispositions, etc. ADT Limited Each Borrower will not, and will not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all any property, business or assets of the Parent, any Subsidiary Borrower or any substantial part of its assets their respective Subsidiaries (including accounts receivable, receivable and Capital Stock of Subsidiaries of ADT Limited and other InvestmentsStock) to any Person (an "Asset Sale")Person, unless
(a) any such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sale, transfer, lease, contribution or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale conveyance is in the ordinary course of business; orits business (including sales of used Vehicles and the customary franchising activities of the Borrowers) or is permitted by Section 8.2.9 or clauses (e) through (i) of Section 8.2.5;
(iib) any such issuance is an issuance of Capital Stock of the Parent or of options or warrants in respect of such Capital Stock;
(c) (i) (A) if any such Asset Sale consists of the sale sale, transfer or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale conveyance is for not less than the Fair Market Value fair market value of the assets sold so sold, transferred or conveyed and (as determined B) in good faith by the event the fair market value of such assets exceeds $5,000,000, the determination of the Board of Directors of ADT Limited the Parent or a committee thereof, whose determination shall be thereof is evidenced by a certified written resolution of such Board or such committee) and and, except in the case of Non-Counted Assets, the consideration received by ADT Limited the relevant Subsidiary Borrower or the relevant Subsidiary of such Subsidiary Borrower in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) thereof consists of at least 7580% cash or Cash Equivalent Investments, (including ii) any such consideration not consisting of cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments (including consideration received in the sale, transfer or conveyance of Non-Counted Assets) is an Investment that would be permitted by Section 8.2.5 and (Ciii) the net book fair market value of such assetsassets (other than Non-Counted Assets), together with the net book aggregate fair market value of all other assets subject (other than Non-Counted Assets) sold, transferred or conveyed pursuant to an Asset Sale permitted under this clause (iic) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective DateFiscal Year such assets are sold, transferred or conveyed, does not exceed $130,000,00010,000,000; provided, however, that no such sale, transfer or conveyance shall be permitted to be made if immediately before or after giving effect thereto, any Default shall have occurred and be continuing; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary without limiting the effect in any manner of ADT Limited (other than the Borrowerprovisions of Article IX, any Subsidiary Guarantor such sale, transfer or any Intermediate Parent Companyconveyance of Vehicles is as a result of an Amortization Event (as defined in the Base Indenture); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Amendment Agreement (Dollar Thrifty Automotive Group Inc)
Asset Dispositions, etc. ADT Limited (a) The Borrower and PAAC will not, and will not permit any of its their Restricted Subsidiaries to, sellmake any Asset Sale (other than, transferin the case of a PCIFP Company or a Restricted Subsidiary of such PCIFP Company, leaseto such PCIFP Company or another Restricted Subsidiary of such PCIFP Company, contribute and, in the case of PAAC or otherwise convey, or grant options, warrants or a Restricted Subsidiary of PAAC (other rights with respect to, all or any substantial part of than a PCIFP Company and its assets (including accounts receivable, Capital Stock of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"Restricted Subsidiaries), unless
to PAAC or another Restricted Subsidiary of PAAC (aother than a PCIFP Company and its Restricted Subsidiaries)) unless (i) the Borrower, PAAC or such Restricted Subsidiary receives consideration at the time of such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect at least equal to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board or otherwise disposed of, and at least 80% of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited the Borrower, PAAC or such Restricted Subsidiary from such Asset Sale is in the relevant form of cash and no portion thereof shall consist of inventory or accounts receivable or other property that would become subject to a Lien held by any other creditor of the Borrower, PAAC or of their respective Restricted Subsidiaries; provided, however, that the amount of any cash equivalent or note or other obligation received by the Borrower, PAAC or such Restricted Subsidiary from the transferee in any such transaction that is converted within 90 days by the Borrower, PAAC or such Restricted Subsidiary into cash will be deemed upon such conversion to be cash for purposes of this provision; (ii) to the extent such Asset Sale involves Collateral, (x) the consent of the Required Lenders shall be obtained prior to the consummation of such sale and (y) the Borrower and PAAC shall cause the aggregate cash proceeds received by any PCIFP Company or any of its Restricted Subsidiaries, in respect of such Asset Sale (other than in connection with a sale or disposition which are allocated to the Collateral, net of the Capital Stock items set forth in clauses (i) through (vi) of Nu-Swift plc held by ADT Limited on the Effective Datedefinition of Net Proceeds (the "Collateral Proceeds") consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together to be deposited with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined Collateral Agent in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.Intercreditor
Appears in 1 contract
Asset Dispositions, etc. ADT Limited Borrower will not, and nor will not Borrower permit any of its Subsidiaries other Credit Party to, sell, lease, transfer, lease, contribute abandon or otherwise convey, or grant options, warrants or other rights with respect to, all or dispose of any substantial part of its assets (including accounts receivable, Capital Stock of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"), unless
(a) such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect to assets asset other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is sale in the ordinary course of business of Hydrocarbons produced from Borrower's and any other Credit Party's Mineral Interests (and not pursuant to Advance Payment Contracts); provided, that, so long as no Default or Event of Default has occurred which is continuing, Borrower shall be permitted to sell or dispose of (a) machinery and equipment which is obsolete or otherwise not necessary or useful in the operation of Borrower's business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (Bb) such Asset Sale is for not less than the Fair Market Mineral Interests during any period between Scheduled Redeterminations with an aggregate Recognized Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that measured at the time of such Asset Salesale or disposition) not in excess of three percent (3%) of the Borrowing Base in effect during such period, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (Cc) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty Seller's Interests (as defined in the Existing Mariner Purchase and Sale Agreement) pursuant to the terms of the Buyer's Option (as defined in the Mariner Purchase and Sale Agreement) and in accordance with Article X of the Mariner Purchase and Sale Agreement; provided, however, and without limiting the foregoing, Borrower will not, nor will Borrower permit any other Credit Facility)Party to, (i) since the Existing Credit Facility Effective Datesell any Hydrocarbons under Advance Payment Contracts, does not exceed $130,000,000; or
(dii) each party to such Asset Sale is either ADT Limited sell or a Subsidiary securitize any of ADT Limited their accounts receivable (other than the Borrowerthose deemed doubtful or uncollectible), (iii) sell any production payment or other term royalty, (iv) purchase property subject to any production payment or term royalty created within 180 days prior to such purchase, or (v) sell assets and then lease them back (or commit to lease them back) within 180 days after such sale. Borrower will not sell, transfer or dispose of, or permit any other Credit Party to sell, transfer or dispose of, any capital stock or other equity interest in any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantorof Borrower.
Appears in 1 contract
Asset Dispositions, etc. ADT Limited will not, and will not permit any of its Subsidiaries subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable, Capital Stock of Subsidiaries subsidiaries of ADT Limited and other Investments) to any Person person (an "Asset Sale"), unless
(a) such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is in the ordinary course of business; or
(iid) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of a Subsidiary subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date9 January 1997) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)d) since the Existing Credit Facility Effective Date, Closing Date plus $10,100,000 does not exceed $130,000,000; or
(de) each party without prejudice to the provisions of Section 4.1.6
(a) such Asset Sale is either to another member of the ADT Limited or a Subsidiary Group, provided that in the case of ADT Limited (other than the Borrower, disposal of any Subsidiary Guarantor Capital Stock of any Obligor or any Intermediate Parent Company); or
, clauses (a) to (e) all parties to of this Section 4.2.10. shall not apply and such Asset Sale are either disposal shall only be made with the Borrower or a Subsidiary Guarantorprior written consent of an Instructing Group.
Appears in 1 contract
Samples: Guarantee (Adt Limited)
Asset Dispositions, etc. ADT Limited will It shall not, and will it shall not permit any of its Subsidiaries to, sell, transfer, lease, contribute lease or otherwise conveydispose of, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable, any Capital Stock or Indebtedness of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"Person), unlessexcept:
(a) such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sales, transfers, leases or Permitted Auction Business Sale; or
(c) with respect other dispositions of Inventory or rights to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is Inventory in the ordinary course of business; or;
(iib) sales, transfers, leases or other dispositions of assets to the Borrower or a Wholly Owned Subsidiary;
(Ac) if such Asset Sale consists the discount or sale, in each case without recourse and in the ordinary course of business, of receivables more than 90 days overdue and 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);
(d) sales or other dispositions in the ordinary course of business of assets (including intellectual property) that have become obsolete, uneconomic, worn-out or no longer useful, including without limitation sales or dispositions arising in connection with Permitted Acquisitions;
(e) Restricted Payments permitted by the terms of this Agreement;
(f) dispositions of cash and Cash Equivalents in the ordinary course of business;
(g) nonexclusive licenses of patents, copyrights, Trademarks, Trade Secrets and other intellectual property of the sale Borrower and its Subsidiaries entered into in the ordinary course of business;
(h) in a transaction permitted under Sections 9.03, 9.06 or transfer 9.07 and the disposition of the Exchangeable Debentures in connection with the Exchangeable Debenture Subsequent Transaction;
(i) leases, subleases or licenses of property to other Persons not materially interfering with the business of the Borrower or any Subsidiary;
(j) sales, transfers or other dispositions of assets by any Broker-Dealer Subsidiary, any Investment Advisor Subsidiary or LoanCo in the ordinary course of business;
(k) sales, transfers or other dispositions of Capital Stock of a Subsidiary to any employees, officers or directors; provided that the total Investment of ADT Limitedthe Credit Parties and their Subsidiaries in such Subsidiary at the time it becomes a non-Wholly-Owned Subsidiary is otherwise permitted under Section 9.07(i); and
(l) sales, all but not less than all transfers, leases and other dispositions of assets (excluding any direct or indirect interest in the Capital Stock of such Subsidiary is so sold Xxxxxxxxxxx & Co., Inc., Xxxxxxxxxxx Asset Management Inc. or transferred, (Btheir respective successors) such Asset Sale is for with an aggregate fair market value not less than the Fair Market Value of the assets sold (as determined exceeding $12,000,000 in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary GuarantorFiscal Year.
Appears in 1 contract
Samples: Subordinated Credit Agreement (Oppenheimer Holdings Inc)
Asset Dispositions, etc. ADT Limited (a) The Borrower will not, and will not permit any Restricted Subsidiary to, make any Asset Sale (other than to the Borrower or other Restricted Subsidiary) unless (i) the Borrower or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of, and at least 80% of the consideration received by the Borrower or such Restricted Subsidiary from such Asset Sale is in the form of cash and no portion thereof shall consist of inventory or accounts receivable or other property that would become subject to a Lien held by any other creditor of the Borrower or of any Restricted Subsidiary of the Borrower; provided, however, that the amount of any cash equivalent or note or other obligation received by the Borrower or such Restricted Subsidiary from the transferee in any such transaction that is converted within 90 days by the Borrower or such Restricted Subsidiary into cash will be deemed upon such conversion to be cash for purposes of this provision; (ii) to the extent such Asset Sale involves Collateral, (x) the consent of the Required Lenders shall be obtained prior to the consummation of such sale and (y) the Borrower shall cause the aggregate cash proceeds received by the Borrower or such Restricted Subsidiary in respect of such Asset Sale which are allocated to the Collateral, net of the items set forth in clauses (i) through (vi) of the definition of Net Proceeds (the "Collateral Proceeds") to be deposited with the Collateral Agent in the Intercreditor Collateral Account as and when received by the Borrower or any of its Restricted Subsidiaries and shall otherwise comply with the Intercreditor Agreement provided, that no Senior Indebtedness other than the Obligations, the Senior Notes or Indebtedness described in clause (j) of Section 7.2.2 may be permanently repaid or prepaid out of, or on account of, any Collateral Proceeds; and (iii) the Net Proceeds received by the Borrower or such Restricted Subsidiary from such Asset Sale are applied in accordance with the following paragraphs.
(b) When the aggregate amount of Net Proceeds from all Asset Sales since the Closing Date exceeds $35,000,000, the Borrower shall apply, subject to Section 3.1.2 and the provisions, if applicable, of the Intercreditor Agreement, 100% of such Net Proceeds in excess of $35,000,000 (including, without limitations, 100% of the Net Proceeds of each Asset Sale subsequent to the Asset Sale which results in Net Proceeds from all Asset Sales since the date hereof exceeding $35,000,000) to prepay the Term Loans on or prior to the tenth Business Day following the date on which such Net Proceeds are received by the Borrower or any of its Restricted Subsidiaries at a price equal to 100% of the principal amount thereof, plus accrued interest thereon to the date of prepayment.
(c) If all or a portion of the Net Proceeds of any Asset Sale are not required to be applied to prepay the Term Loans pursuant to the preceding paragraph (b), then the Borrower may, within 365 days of such Asset Sale, invest such Net Proceeds in the Borrower or in one or more Restricted Subsidiaries of the Borrower engaged in a Related Business. The amount of such Net Proceeds not used to or invested as set forth in this paragraph shall be applied by the Borrower, subject to Section 3.1.2 and the provisions, if applicable, of the Intercreditor Agreement, to the prepayment of the Term Loans on or prior to the tenth Business Day following the date such Net Proceeds are not so used or invested at a price equal to 100% of the principal amount thereof, plus accrued interest thereon to the date of prepayment; provided, however, that to the extent
(d) Until such time as the Net Proceeds from any Asset Sale are applied in accordance with this Section, such Net Proceeds will be segregated from the other assets of the Borrower and its Subsidiaries and invested in cash or Eligible Investments, except that the Borrower or any Restricted Subsidiary may use any Net Proceeds pending the utilization thereof in the manner (and within the time period) described above, and (except as to Collateral Proceeds) to repay revolving loans (under the Revolving Credit Agreement or otherwise) without a permanent reduction of the commitment thereunder.
(e) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, sell, transfer, lease, contribute create or otherwise convey, permit to exist or grant options, warrants or other rights with respect to, all or become effective any substantial part of its assets (including accounts receivable, Capital Stock of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"), unless
(a) such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale or Permitted Auction Business Sale; or
(c) with respect to assets consensual restriction other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is in the ordinary course of business; or
(ii) (A) if such Asset Sale consists of the sale or transfer of the Capital Stock of restrictions not more restrictive taken as a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold whole (as determined in good faith by the Board chief financial officer of Directors the Borrower) than those in effect under Existing Indebtedness and the Revolving Credit Agreement that would materially impair the ability of ADT Limited the Borrower to comply with the provisions of this Section.
(f) If at any time any non-cash consideration (other than any such consideration consisting of inventory, accounts receivable and certain related assets securing or a committee thereofpermitted to secure the Revolving Credit Agreement) is received by the Borrower or any Restricted Subsidiary, whose determination as the case may be, in connection with any Asset Sale of assets which includes Collateral, such non- cash consideration shall be evidenced by a certified written resolution made subject to the Lien of the Security Documents in the manner contemplated in the Intercreditor Agreement to the extent of the purchase price allocated to the Collateral. If and when any such Board or such committee) and the non-cash consideration received by ADT Limited or the relevant Subsidiary in respect of such from any Asset Sale (other than in connection with a sale whether or not relating to Collateral) is converted into or sold or otherwise disposed of for cash, then such conversion or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject shall be deemed to constitute an Asset Sale permitted under hereunder and the Net Proceeds thereof shall be applied in accordance with this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or7.2.6.
(dg) each party All Insurance Proceeds and all Net Awards required to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than be delivered to the Borrower, Collateral Agent pursuant to any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either Security Document shall constitute Trust Moneys and shall be delivered by the Borrower or a Restricted Subsidiary, as the case may be, to the Collateral Agent contemporaneously with receipt by the Borrower or such Restricted Subsidiary Guarantorand be deposited into the Intercreditor Collateral Account and applied in accordance with the applicable provisions of the Intercreditor Agreement. Insurance Proceeds and Net Awards so deposited that may be applied by the Borrower or a Restricted Subsidiary to effect a Restoration of the affected Collateral under the applicable Security Document may be withdrawn from the Intercreditor Collateral Account only in accordance with the applicable provisions of the Intercreditor Agreement. Insurance Proceeds and Net Awards so deposited that are not applied to effect a Restoration of the affected Collateral under the applicable Security Document may only be withdrawn in accordance with applicable provisions of the Intercreditor Agreement.
Appears in 1 contract
Asset Dispositions, etc. ADT Limited The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of the Borrower or any of its Subsidiaries (except as specifically permitted pursuant to Section 8.1.10(a)) in any one transaction or in any series of transactions, whether or not related, except that, if at the time thereof and immediately after giving 75 Credit Agrmt effect thereto no Default shall have occurred and be continuing, any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or any Qualified Subsidiary. The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant options, warrants (or other rights with respect to), less than all or any substantial part of its assets (including accounts receivable, Capital Stock of Subsidiaries of ADT Limited receivable and other Investmentsincluding any assets sold and then leased pursuant to a “sale/leaseback” transaction) to any Person (an "Asset Sale"), unlessother than
(a) such Asset Sale equipment which is permitted worthless or obsolete or which is replaced by Section 4.2.9; orequipment of equal suitability and value;
(b) such Asset Sale inventory (including Hydrocarbons sold as produced) which is a Permitted Strategic Sale or Permitted Auction Business Sale; orsold for cash only in the ordinary course of business on ordinary trade terms;
(c) with respect to assets other than the Capital Stock farmouts of the Borrower and any Intermediate Parent Companyof its Qualified Subsidiaries under standard industry terms of Properties not holding Proven Reserves;
(id) such Asset Sale is abandonment of Properties of the Borrower and any of its Qualified Subsidiaries not capable of producing Hydrocarbons in paying quantities after the ordinary course expiration of business; ortheir primary terms;
(iie) (A) if such Asset Sale consists as permitted by Section 2.7 of the sale or transfer Mortgage; and
(f) sales of Oil and Gas Properties of the Capital Stock Borrower and any of a Subsidiary its Qualified Subsidiaries under standard industry terms, but only if the Net Sales Proceeds, when added to the aggregate amount of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination shall be evidenced by a certified written resolution of such Board or such committee) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received Net Sales Proceeds from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of sales that may have occurred during the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Datemost recent six-month period, does not exceed $130,000,000100,000, and if such sale does not create a Collateral Value Deficiency, and subject to the provisions of Section 3.1.2; or
provided, however, that (dx) each party if such assets are not Collateral Value Properties or Development Properties, such transfer, lease, contribution or conveyance is for cash or other consideration having a value at least equal to the fair market value of such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.assets;
Appears in 1 contract
Asset Dispositions, etc. ADT Limited will not, and will It shall not permit any of its Subsidiaries to, sell, transfer, lease, contribute lease or otherwise conveydispose of, or grant options, warrants or other rights with respect to, all or any substantial part of its assets (including accounts receivable, Capital Stock any capital stock or Indebtedness of Subsidiaries of ADT Limited and other Investments) to any Person (an "Asset Sale"Person), unless(each an “Asset Disposition”) except:
(a) such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sales, transfers, leases or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock dispositions of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is Inventory or rights to Inventory, (ii) surplus equipment and (iii) Permitted Investments, in each case in the ordinary course of business; or;
(iib) sales, transfers, leases or other dispositions of assets to a Credit Party;
(Ac) if such Asset Sale consists the discount or sale, in each case without recourse and in the ordinary course of business, of receivables more than ninety (90) days overdue and 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 transfer financing of receivables);
(d) sales or other dispositions in the Capital Stock ordinary course of business of equipment and other tangible assets that have become obsolete, uneconomic, worn-out or no longer useful in the business of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold Credit Party or transferred, its Subsidiaries;
(Be) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith Restricted Payments permitted by the Board terms of Directors this Agreement;
(f) dispositions of ADT Limited cash and Cash Equivalents in the ordinary course of business;
(g) nonexclusive licenses of Intellectual Property of a Credit Party or a committee thereof, whose determination shall be evidenced by a certified written resolution its Subsidiaries entered into in the ordinary course of such Board business and dispositions of immaterial Intellectual Property (including allowing any registrations or such committeeany applications of any immaterial Intellectual Property to lapse or go abandoned);
(h) and the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale transaction permitted under SECTION 9.03 or disposition SECTION 9.07;
(i) dispositions with an aggregate fair market value not exceeding ten million Dollars ($10,000,000) in the aggregate after the Closing Date;
(j) any Credit Party shall have the right (i) to terminate or allow to expire or to not renew any Lease in the ordinary and normal course of its business that is no longer needed for the ongoing operations of such Credit Party; or (ii) to enter into subleases, easements, licenses and other similar agreements relating to portions of its Property with third parties in the ordinary course of business of such Credit Party, to the extent that any such sublease, easement, license or other like agreement or does not otherwise relate to a material portion of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective DateProperty; and in all cases under clauses (i) consists of at least 75% cash and (including any cash proceeds received from the sale of securities received in such Asset Saleii), provided that at the time such action or event could not reasonably be expected to result in a Material Adverse Effect; and
(k) dispositions of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 certain mining complexes of the ADT Limited Guaranty (as defined in Credit Parties identified to the Existing Credit FacilityLenders prior to the date hereof or identified on Schedule 9.04(k)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary of ADT Limited (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Company); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit Agreement (James River Coal CO)
Asset Dispositions, etc. ADT Limited SIHL will not, and will not permit any of its Subsidiaries to, to sell, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights (collectively referred to as a "DISPOSITION"), with respect to, all any assets of SIHL or any substantial part of its assets Subsidiary (including accounts receivable, Capital Stock receivable and capital stock of Subsidiaries of ADT Limited and other InvestmentsSubsidiaries) to any Person (an "Asset Sale")Person, unless
(a) such Asset Sale Disposition is (i) in the ordinary course of its business (it being agreed that, other than the subdivision and sale of real property and improvements in each case in and around the Ocean Club and the golf course located on Paradise Island, The Bahamas, the sale of real property is not, for purposes of this Agreement or any other Loan Document, in the "ordinary course of business") or (ii) permitted by Section 4.2.9SECTION 7.2.10; or
(b) such Asset Sale Disposition is of the Excluded Desert Inn Property in connection with a Permitted Strategic Sale timeshare joint venture agreement with Starwood or Permitted Auction Business Sale; orits Affiliates pursuant to the terms set forth in Exhibit 10.6(b)-1 of the Desert Inn Purchase Agreement;
(c) with respect such Disposition is the issuance of up to assets other than the Capital Stock 20% of the Borrower and any Intermediate Parent Company
(i) such Asset Sale is in capital stock of SINI to Starwood or its Affiliates pursuant to the ordinary course of business; or
(ii) (A) if such Asset Sale consists terms of the sale or transfer of the Capital Stock of a Subsidiary of ADT LimitedStarwood Agreements, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale is for not less than the Fair Market Value of the assets sold (as determined in good faith by the Board of Directors of ADT Limited or a committee thereof, whose determination which Starwood Agreements shall be evidenced by a certified written resolution of such Board or such committee) in form and substance and containing terms satisfactory to the consideration received by ADT Limited or the relevant Subsidiary in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) consists of at least 75% cash (including any cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments and (C) the net book value of such assets, together with the net book value of all other assets subject to an Asset Sale permitted under this clause (ii) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective Date, does not exceed $130,000,000Managing Agents; or
(d) each party in addition to CLAUSES (a), (b) and (c), other Dispositions; PROVIDED, that the fair market value of the assets that are the subject of the Disposition (i) in any single transaction or series of transactions does not exceed $30,000,000 in any given Fiscal Year and (ii) after giving effect to all such Asset Sale Dispositions, does not exceed $75,000,000 in the aggregate over the term of this Agreement, and any such Disposition is either ADT Limited in an arm's-length transaction and made for fair market value, and at least 50% of the consideration received is in cash, with all non-cash consideration being evidenced by a note in form and substance satisfactory to the Administrative Agent, which note shall be pledged to the Administrative Agent under a Pledge Agreement and the Administrative Agent shall be satisfied that it has a first priority, perfected Lien on and security interest in such note. Notwithstanding anything in this Agreement or in any Loan Document to the contrary, (i) the Borrowers will not, and will not permit any of their Subsidiaries to, permit a Subsidiary Disposition of ADT Limited any Core Assets (other than the Borrower, any Subsidiary Guarantor or any Intermediate Parent Companyinterest therein); or
, and (eii) all parties a Disposition of any real property contiguous to such Asset Sale Core Assets (or upon which Core Assets are either situated) shall only be permitted on terms that do not contain any restrictions, agreements or covenants that will interfere in any material adverse respect with access to or the Borrower operations of any Core Assets. Upon a Disposition permitted by this Section the Lien in favor of the Secured Parties upon the assets so sold, transferred, leased, contributed or a Subsidiary Guarantorconveyed shall automatically terminate and be released.
Appears in 1 contract
Samples: Revolving Credit Agreement (Sun International Hotels LTD)
Asset Dispositions, etc. ADT Limited Each Borrower will not, and will not permit any of its Subsidiaries to, sell, issue, transfer, lease, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all any property, business or assets of the Parent, any Subsidiary Borrower or any substantial part of its assets their respective Subsidiaries (including accounts receivable, receivable and Capital Stock of Subsidiaries of ADT Limited and other InvestmentsStock) to any Person (an "Asset Sale")Person, unless
(a) any such Asset Sale is permitted by Section 4.2.9; or
(b) such Asset Sale is a Permitted Strategic Sale sale, transfer, lease, contribution or Permitted Auction Business Sale; or
(c) with respect to assets other than the Capital Stock of the Borrower and any Intermediate Parent Company
(i) such Asset Sale conveyance is in the ordinary course of business; orits business (including sales of used Vehicles and the customary franchising activities of the Borrowers) or is permitted by Section 8.2.9;
(iib) any such issuance is an issuance of Capital Stock of the Parent or of options or warrants in respect of such Capital Stock;
(c) (i) (A) if any such Asset Sale consists of the sale sale, transfer or transfer of the Capital Stock of a Subsidiary of ADT Limited, all but not less than all of the Capital Stock of such Subsidiary is so sold or transferred, (B) such Asset Sale conveyance is for not less than the Fair Market Value fair market value of the assets sold so sold, transferred or conveyed (as determined in good faith -98- 107 by the Board of Directors of ADT Limited the Parent or a committee thereof) and (B) in the event the fair market value of such assets exceeds $2,500,000, whose the determination shall be of such Board or committee is evidenced by a certified written resolution of such Board or such committee) and and, except in the case of Non-Counted Assets, the consideration received by ADT Limited the relevant Subsidiary Borrower or the relevant Subsidiary of such Subsidiary Borrower in respect of such Asset Sale (other than in connection with a sale or disposition of the Capital Stock of Nu-Swift plc held by ADT Limited on the Effective Date) thereof consists of at least 7580% cash or Cash Equivalent Investments, (including ii) any such consideration not consisting of cash proceeds received from the sale of securities received in such Asset Sale, provided that at the time of such Asset Sale, ADT Limited or the relevant Subsidiary has entered into a legally binding agreement for the sale of such securities and such securities are sold within sixty days of such Asset Sale), or Cash Equivalent Investments (including consideration received in the sale, transfer or conveyance of Non-Counted Assets) shall be an Investment permitted by Section 8.2.5 and (Ciii) the net book fair market value of such assetsassets (other than Non-Counted Assets), together with the net book aggregate fair market value of all other assets subject (other than Non-Counted Assets) sold, transferred or conveyed pursuant to an Asset Sale permitted under this clause (iic) (or clause (c)(ii) of Section 4.2.10 of the ADT Limited Guaranty (as defined in the Existing Credit Facility)) since the Existing Credit Facility Effective DateFiscal Year such assets are sold, transferred or conveyed, does not exceed $130,000,0005,000,000; provided, however, that no such sale, transfer or conveyance shall be permitted to be made if immediately before or after giving effect thereto, any Default shall have occurred and be continuing; or
(d) each party to such Asset Sale is either ADT Limited or a Subsidiary without limiting the effect in any manner of ADT Limited (other than the Borrowerprovisions of Article IX, any Subsidiary Guarantor such sale, transfer or any Intermediate Parent Companyconveyance of Vehicles is as a result of an Amortization Event (as defined in the Base Indenture); or
(e) all parties to such Asset Sale are either the Borrower or a Subsidiary Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
