Common use of Asset Sales Clause in Contracts

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.

Appears in 6 contracts

Samples: Supplemental Indenture (Vital Energy, Inc.), Supplemental Indenture (Laredo Petroleum, Inc.), Supplemental Indenture (Laredo Petroleum, Inc.)

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Asset Sales. (a) The No later than the second Business Day following the date of receipt by Company will not, and will not cause or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, Company shall prepay the Loans in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Event of Default shall have occurred and be continuing, Company shall have the option, directly or through one or more of its Guarantor Subsidiaries (other than RP Sub No. 1), to invest, within 180 Business Days after receipt thereof, any Net Asset Sale Proceeds, up to an aggregate amount for all such invested Net Asset Sale Proceeds after the Closing Date not to exceed the Aggregate Proceeds Threshold, in productive assets of the general type used in the business of Company and its Subsidiaries (“Productive Assets”); provided, further, that if aggregate Net Asset Sale Proceeds plus Cash proceeds relating to Capital Stock referenced in Sections 2.14(c)(ii) and 2.14(c)(iii) from the Closing Date through the applicable date of determination do not exceed $3,000,000, Company shall have no obligation to prepay the Loans or reinvest the proceeds thereof; provided, further, that for the first two Fiscal Quarters following the Closing Date, all proceeds from a sale of Axid® OS that shall not require a mandatory prepayment pursuant to the foregoing shall (i) be held in escrow until such time that Company has delivered a duly executed and completed Compliance Certificate certifying compliance with the Company or such Restricted Subsidiarycovenants under this Agreement for the first two Fiscal Quarters following the Closing Date, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% upon delivery of such Compliance Certificates, such escrowed proceeds shall be released to Company for reinvestment in Productive Assets. Otherwise, in the consideration paid event such Compliance Certificate prerequisite has not been satisfied, the escrowed proceeds shall remain in escrow pending Requisite Lender request for the application of such proceeds to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form payment of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company Loans or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated waiver permitting proceeds to the Notes) as a result of which the Company be released from escrow and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees returned to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeCompany.

Appears in 4 contracts

Samples: Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Counterpart Agreement (Reliant Pharmaceuticals, Inc.)

Asset Sales. The Term Agents agree, on behalf of themselves and the Term Secured Parties, that they will not oppose (a) The Company will not, and will not cause or permit support any Restricted Subsidiary other Person in opposing), and hereby consent to, consummate any Asset Sale unless sale consented to by the ABL Agent of any ABL Priority Collateral pursuant to Sections 363(f) or 1129 of the Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding or under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws) (each an “ABL Bankruptcy Sale”) or any motion seeking approval for proposed bidding procedures in respect of any such ABL Bankruptcy Sale, so long as (i) the Company or such Restricted SubsidiaryTerm Agents, as for the case may bebenefit of the Term Secured Parties, receives consideration at shall retain a Lien on the time proceeds of such Asset Sale at least equal sale (to the Fair Market Value of extent such proceeds are not applied to the assets and property ABL Obligations in accordance with Section 4.1(b) hereof) subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) priorities set forth in this Agreement, and (ii) (A) at least 75% the applicable motion to approve such sale does not impair, subject to the priorities set forth in this Agreement, the rights of the consideration paid Term Secured Parties to credit bid their Liens on the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since ABL Priority Collateral under Section 363(k) of the Issue DateBankruptcy Code (so long as the Discharge of ABL Obligations would occur in connection therewith). The ABL Agent agrees, on a cumulative basisbehalf of itself and the ABL Secured Parties, is that it will not oppose (and will not support any other Person in the form opposing), and hereby consents to, any sale consented to by any Term Agent of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including any Term Priority Collateral pursuant to Asset SwapsSections 363(f) or the assumption by the acquiring Person of Indebtedness or other liabilities 1129 of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities Bankruptcy Code (or in lieu of such absence of liability, any similar provision under the acquiring Person law applicable to any Insolvency Proceeding or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws) (each a “Term Bankruptcy Sale”) or any motion seeking approval for proposed bidding procedures in respect of any such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for Term Bankruptcy Sale, so long as (i) any such liabilities remain outstanding unless such indemnifying party sale is made in accordance with Section 3.6 hereof, (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (Bii) the Fair Market Value ABL Agent, for the benefit of all forms the ABL Secured Parties, shall retain a Lien on the proceeds of such consideration other than Permitted Consideration since sale (to the Issue Date extent such proceeds are not applied to the Term Obligations in accordance with Section 4.1(c) hereof) subject to the priorities set forth in this Agreement, and (iii) the applicable motion to approve such sale does not exceed impair, subject to the priorities set forth in this Agreement, the aggregate 5% rights of the Adjusted Consolidated Net Tangible Assets ABL Secured Parties to credit bid their Liens on the Term Priority Collateral under Section 363(k) of the Company determined at Bankruptcy Code (so long as the time Discharge of Term Obligations would occur in connection therewith). If such Asset Sale is madesale of Collateral includes both ABL Priority Collateral and Term Priority Collateral and the Parties are unable after negotiating in good faith to agree on the allocation of the purchase price between the ABL Priority Collateral and Term Priority Collateral, either Party may apply to the court in such Insolvency Proceeding to make a determination of such allocation, and the court’s determination shall be binding upon the Parties.

Appears in 4 contracts

Samples: Security Agreement (Hayward Holdings, Inc.), Security Agreement (Hayward Holdings, Inc.), Security Agreement (Hayward Holdings, Inc.)

Asset Sales. Not later than three (a3) The Company will not, and will not cause or permit Business Days following the receipt of any Restricted Subsidiary to, consummate Net Cash Proceeds of any Asset Sale unless by the Borrower or any of its Restricted Subsidiaries, the Borrower shall make prepayments of the Term Loans in accordance with Section 2.10(g) and (ih) the Company or in an aggregate amount equal to 100% of such Restricted SubsidiaryNet Cash Proceeds; provided, as the case may be, receives consideration that if at the time of that any such Asset Sale at least equal prepayment would be required, the Borrower is required to prepay or offer to repurchase Permitted First Priority Refinancing Debt or any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Indebtedness with the Net Cash Proceeds of such Asset Sale (such Fair Market Value Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Net Cash Proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of liabilitythe Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within 10 Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Term Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.terms hereof; provided further that:

Appears in 4 contracts

Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)

Asset Sales. No later than the first Business Day following the date of receipt by any Note Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds, if received on or after the Initial Note Date, shall be deposited into a Controlled Account on the same Business Day as receipt thereof), the Remaining Amount shall be reduced in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) The Company will notso long as no Default or Event of Default shall have occurred and be continuing, and will not cause or permit any Restricted Subsidiary to, consummate any (ii) to the extent that aggregate Net Asset Sale unless Proceeds from the Closing Date through the applicable date of determination do not exceed $500,000, upon delivery of a written notice to the Purchasers, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $500,000 or more has been consented to by the Requisite Purchasers) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Sale Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, if requested by the Requisite Purchasers, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to the Requisite Purchasers. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earliest of (i) the Company or last day of such Restricted Subsidiaryone hundred twenty (120) day period (if, as with respect to a Permitted Acquisition, a definitive purchase agreement therefor has not been executed in accordance with the case may beother provisions of this Agreement), receives consideration at (ii) the time last day of such one hundred eighty (180) day period (if, with respect to a Permitted Acquisition, a definitive purchase agreement therefor has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, such Asset Sale at least equal Reinvestment Amounts shall be applied to the Fair Market Value Obligations as set forth in Section 2.14(b). For the avoidance of doubt, if any Net Asset Sale Proceeds are received by any Note Party or any of its Subsidiaries prior to the payment in full and discharge of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary Goldman NPA Obligations (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of any contingent indemnification amounts for which no claim has been made), such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Net Asset Sale Proceeds shall be applied as set forth in favor Section 2.13 of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeGoldman NPA.

Appears in 3 contracts

Samples: Master Note Purchase Agreement (Ontrak, Inc.), Master Note Purchase Agreement (Ontrak, Inc.), Master Note Purchase Agreement (Acuitas Group Holdings, LLC)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date or Equity Interests issued or sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary transferee that are immediately converted by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless into cash (to the extent of the cash received) and (c) escrowed cash that the Company reasonably believes will be released from and against any loss, liability or cost in respect escrow within 365 days from the date of consummation of such assumed liabilities accompanied by Asset Sale, in each case shall be deemed to be cash for purposes of this provision. Notwithstanding the posting of a letter of credit immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (issued by a commercial bank that has an Investment Grade Ratingi) in favor of the Company or such the applicable Restricted Subsidiary for Subsidiary, as the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implicationscase may be, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) receives consideration at the time of such Asset Sale at least equal to the indemnity is entered intofair market value of the assets or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Consideration”Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt under a Credit Facility (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (Bii) to the Fair Market Value acquisition of all forms a controlling interest in a Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, used or useful in a Permitted Business. Pending the final application of any such consideration other than Permitted Consideration since Net Proceeds, the Issue Date does Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not exceed prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate 5amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem such other pari passu Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture and in such other pari passu Indebtedness. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company determined at may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the time aggregate principal amount of Notes and such other pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of an Asset Sale is madeOffer, the amount of Excess Proceeds shall be reset at zero.

Appears in 3 contracts

Samples: Indenture (SFX Entertainment Inc), Indenture (SFX Broadcasting Inc), SFX Entertainment Inc

Asset Sales. (a) The Company Parent Guarantor will not, and will not cause permit the Company or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the Parent Guarantor, the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Parent Guarantor, the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Parent Guarantor, the Company or a Restricted Subsidiary (other than liabilities of the Parent Guarantor, the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Parent Guarantor, the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Parent Guarantor, the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Parent Guarantor, the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company Parent Guarantor determined at the time such Asset Sale is made.

Appears in 3 contracts

Samples: Supplemental Indenture (Laredo Petroleum Holdings, Inc.), Supplemental Indenture (Laredo Petroleum Holdings, Inc.), Supplemental Indenture (Laredo Petroleum, Inc.)

Asset Sales. (a) The Company will not, and will not cause Not later than the fifth Business Day following the date of receipt by the Borrower or permit any Restricted Subsidiary toof any Net Proceeds in respect of any Asset Sale, consummate the Borrower shall prepay the Term Borrowings in an aggregate amount equal to 100% of such Net Proceeds; provided that the Borrower may, at least one Business Day prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in non-current assets useful in the business of the Borrower and its Restricted Subsidiaries or in Permitted Acquisitions or other Acquisitions, in each case, within 365 days after the receipt of such Net Proceeds, and certifying that, as of the date thereof, no Event of Default has occurred and is continuing, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested by the end of such period (or within a period of 270 days thereafter if by the end of such initial 365-day period the Borrower or any of its Restricted Subsidiaries shall have entered into a binding agreement with a third party to so reinvest such Net Proceeds) shall be applied to prepay the Term Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Asset Sale unless that would otherwise be required pursuant to this Section 2.13(a) to be applied to prepay the Term Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Asset Sale (with the amount of the prepayment of the Term Borrowings that would otherwise have been required pursuant to this Section 2.13(a) being reduced accordingly), provided that (i) such portion shall not exceed the Company or product of (A) the amount of such Restricted SubsidiaryNet Proceeds multiplied by (B) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Term Borrowings, as the in each case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value occurrence of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) , and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or event the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu holders of such absence of liabilityPermitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securitiesevent within 10 Business Days after the date of rejection) failing be applied to have an Investment Grade Rating) at prepay the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeTerm Borrowings.

Appears in 3 contracts

Samples: Counterpart Agreement (Fusion Connect, Inc.), Pledge and Security Agreement (Fusion Connect, Inc.), Super Senior Secured Credit Agreement (Fusion Connect, Inc.)

Asset Sales. Not later than three (a3) The Company will not, and will not cause or permit Business Days following the receipt of any Restricted Subsidiary to, consummate Net Cash Proceeds of any Asset Sale unless (i) by the Designated Company or any of its Restricted Subsidiaries, the applicable Co-Borrowers shall make prepayments of the Term Loans in accordance with Section 2.10(g) and (h) in an aggregate amount equal to 100% of such Restricted SubsidiaryNet Cash Proceeds; provided, as the case may be, receives consideration that if at the time of that any such prepayment would be required, such Co-Borrower is required to prepay or offer to repurchase (x) Permitted Short Term Indebtedness, solely to the extent that such Asset Sale at least equal constitutes a Specified Divestiture, (y) Permitted First Priority Refinancing Debt, or (z) any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Indebtedness, in the case of clauses (x) through (z), with the Net Cash Proceeds of such Asset Sale (such Fair Market Value Permitted Short Term Indebtedness, Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then such Co-Borrower shall apply such Net Cash Proceeds on a pro rata basis (determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Net Cash Proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of liabilitythe Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within 10 Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Term Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.terms hereof; provided further that:

Appears in 3 contracts

Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)

Asset Sales. The Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect (aexcept contingent indemnification obligations) The Company and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, the Borrower will not, and will not permit any of its Restricted Subsidiaries to, cause or permit any Restricted Subsidiary tomake an Asset Sale, consummate any Asset Sale unless (ix) the Company Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined in good faith by the Board of Directors of the Borrower) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (Ay) at least 75% of the consideration paid to therefor received by the Company Borrower or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Subsidiary, as the Issue Date, on a cumulative basiscase may be, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties ; provided that the amount of: (including pursuant to Asset Swapsa) any liabilities (as shown on the Borrower’s or the assumption by the acquiring Person of Indebtedness or other liabilities such Restricted Subsidiary’s most recent balance sheet) of the Company Borrower or a any Restricted Subsidiary of the Borrower (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the NotesCredit Agreement Obligations) as a result that are assumed by the transferee of any such assets and from which the Company and Borrower or any Restricted Subsidiary are released in writing, (b) any notes or other obligations or other securities or assets received by the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company Borrower or such Restricted Subsidiary harmless of the Borrower from and against any loss, liability or cost in respect of such assumed liabilities accompanied transferee that are converted by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company Borrower or such Restricted Subsidiary for of the full amount Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received), and (c) any Designated Non-cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such liabilities and for so long Asset Sale having an aggregate Fair Market Value (as such liabilities remain outstanding unless such indemnifying party determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this clause (or its long term debt securitiesc) shall have an Investment Grade Rating (with no indication that is at that time outstanding, not to exceed 5.0% of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) Total Assets of the Borrower at the time of the indemnity is entered into) receipt of such Designated Non-cash Consideration (“Permitted Consideration”) or (B) with the Fair Market Value of all forms each item of such consideration other than Permitted Designated Non-cash Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined being measured at the time such Asset Sale is madereceived and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this provision.

Appears in 3 contracts

Samples: Credit Agreement (Hughes Communications, Inc.), Credit Agreement (Hughes Network Systems, LLC), Credit Agreement (Hughes Communications, Inc.)

Asset Sales. (ai) The Promptly after the occurrence of an Asset Sale, the Company will not, shall deliver written notice thereof via facsimile and will not cause or permit any Restricted Subsidiary to, consummate any overnight courier (an “Asset Sale unless Notice”) to each of the Holders. At any time after the receipt of the Asset Sale Notice, a Holder may require the Company to redeem, with the Available Asset Sale Proceeds all or any portion of the Preferred Shares held by such Holder by delivering written notice thereof (the “Asset Sale Redemption Notice”) to the Company, which Asset Sale Redemption Notice shall indicate the number of such Preferred Shares such Holder is electing to redeem; provided that if the aggregate number amount of Preferred Shares to be redeemed from such Holder and the other Holders with the cash proceeds of an Asset Sale exceed the Available Asset Sale Proceeds for such Asset Sale, the Company shall redeem the Preferred Shares presented for redemption on a pro rata basis with such proceeds. Each Preferred Share subject to redemption by the Company pursuant to this Section 8(e) shall be redeemed by the Company at a price equal to at a price per Preferred Share equal to the greater of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) Conversion Amount and (ii) the product of (A) the Conversion Rate in effect at least 75% such time as such Holder delivers an Asset Sale Redemption Notice and (B) the greater of the consideration paid to Closing Sale Price of the Company or such Restricted Subsidiary from Common Stock on the Trading Day following such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities Closing Sale Price of the Common Stock on the date the Holder delivers the Asset Sale Redemption Notice (the “Asset Sale Redemption Price”). The Company or a Restricted Subsidiary shall deliver on the fifth (other than liabilities 5th) Business Day (the “Asset Sale Redemption Date”) after the Company’s receipt of the Company or first Asset Sale Redemption Notice the applicable Asset Sale Redemption Price to all Holders that deliver a Restricted Subsidiary that are by their terms subordinated Asset Sale Redemption Notice prior to such fifth (5th) Business Day after the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor Company’s receipt of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such first Asset Sale is madeRedemption Notice.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Cano Petroleum, Inc), Securities Purchase Agreement (Cano Petroleum, Inc), Agreement and Plan of Merger (Cano Petroleum, Inc)

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption or cancellation by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result ), or with respect to any Asset Sale of which oil and natural gas properties by the Company and the remaining or any of its Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold where the Company or such Restricted Subsidiary harmless from retains an interest in such property, the aggregate costs and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor expenses of the Company or such Restricted Subsidiary for related to the full amount exploration, development, completion or production of such liabilities properties and for so long as such liabilities remain outstanding unless such indemnifying party activities related thereto that the transferee (or its long term debt securitiesan Affiliate therefor) shall have an Investment Grade Rating agrees to pay (with no indication of a negative outlook or credit watch with negative implicationscollectively, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.

Appears in 2 contracts

Samples: Supplemental Indenture (Vital Energy, Inc.), Indenture (Vital Energy, Inc.)

Asset Sales. (a) The Company will notCash Flow Agent agrees, on behalf of itself and the Cash Flow Secured Parties, that it will not cause oppose any sale consented to by the ABL Agent of any ABL Priority Collateral pursuant to Section 363(f) of the Bankruptcy Code (or permit any Restricted Subsidiary to, consummate similar provision under the law applicable to any Asset Sale unless (iInsolvency Proceeding or under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws) the Company or such Restricted Subsidiary, so long as the case may be, receives consideration at the time proceeds of such Asset Sale sale are applied in accordance with this Agreement. The ABL Agent agrees, on behalf of itself and the ABL Secured Parties, that it will not oppose any sale consented to by the Cash Flow Agent of any Cash Flow Priority Collateral pursuant to Section 363(f) of the Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding or under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws) so long as the proceeds of such sale are applied in accordance with this Agreement. Each Junior Agent that becomes a party to this Agreement agrees, for itself and on behalf of each Junior Secured Party represented thereby, that it will not oppose any sale or other disposition consented to by any Senior Agent of any Senior Collateral pursuant to Section 363 of the Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding or under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws), so long as the proceeds of such sale are applied in accordance with this Agreement. If such sale of Collateral includes both ABL Priority Collateral and Cash Flow Priority Collateral, the ABL Secured Parties shall be entitled to receive net proceeds from such sale in an amount at least equal to the Fair Market Value maximum amounts available to be borrowed under any ABL Credit Agreement with respect to the Inventory and Accounts included in such sale; as to the balance of the assets net proceeds, if the ABL Agent, on behalf of itself and property subject the ABL Secured Parties, and the Cash Flow Agent, on behalf of itself and the Cash Flow Secured Parties, are unable after negotiating in good faith to such Asset Sale (such Fair Market Value to be determined agree on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% allocation of the consideration paid purchase price between the ABL Priority Collateral and Cash Flow Priority Collateral, either such Party may apply to the Company or court in such Restricted Subsidiary from Insolvency Proceeding to make a determination of such Asset Sale and all other Asset Sales since the Issue Dateallocation, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees court’s determination shall be binding upon all Parties to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madethis Agreement.

Appears in 2 contracts

Samples: Intercreditor Agreement (Avaya Inc), Intercreditor Agreement (Avaya Inc)

Asset Sales. (a1) The Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, consummate any an Asset Sale unless (i) the Company Issuer or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale sold or otherwise disposed of (such Fair Market Value to be determined on as evidenced by a resolution of the date Board of contractually agreeing to effect such Asset Sale) Directors), and (ii) (A) at least 75% of the consideration paid to received by the Company Issuer or such the Restricted Subsidiary Subsidiary, as the case may be, from such Asset Sale and all shall be cash or other Qualified Consideration. The Issuer or any Restricted Subsidiary may, within 365 days of the Asset Sales since Sale, invest the Issue DateNet Cash Proceeds thereof (A) in property or assets used, on a cumulative basisor to be used, is in the form of cashSystem and Network Management Business, Cash Equivalents, Liquid Securities, Exchanged Properties or in a company engaged primarily in the System and Network Management Business (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated if and to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liabilityextent otherwise permitted under this Indenture), the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) to repay Secured Debt of the Fair Market Value of all forms Issuer or any Restricted Subsidiary. The amount of such consideration other than Permitted Consideration since Net Cash Proceeds not used or invested within 365 days of the Issue Date does not exceed Asset Sale in the aggregate 5manner described in clauses (A) and (B) above shall constitute "Excess Proceeds." In the event that Excess Proceeds exceed $10.0 million, the Issuer shall make an Offer to Purchase that amount of Securities equal to the amount of Excess Proceeds at a price equal to 100% of the Adjusted Consolidated Net Tangible Assets principal amount of the Company determined Securities to be purchased, plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase and, to the extent required by the terms thereof, any other Debt of the Issuer that is pari passu with the Securities or Debt of a Restricted Subsidiary. Each Offer to Purchase shall be mailed within 30 days following the date that the Issuer shall become obligated to purchase Securities with any Excess Proceeds. Following the completion of an Offer to Purchase, the amount of Excess Proceeds shall be deemed to be reset at zero and, to the time extent there are any remaining Excess Proceeds the Issuer may use such Asset Sale Excess Proceeds for any use which is madenot otherwise prohibited by this Indenture. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Securities pursuant to such Offer to Purchase.

Appears in 2 contracts

Samples: Indenture (Exodus Communications Inc), Registration Rights Agreement (Exodus Communications Inc)

Asset Sales. (a) The Company will Each of the Issuers shall not, and will shall not cause or permit any of their respective Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless such Issuer (i) or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by an Officers' Certificate delivered to the Trustee and a resolution of the Board of Directors) of the assets and property subject or Equity Interests issued or sold or otherwise disposed of. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Issuers may apply such Net Proceeds, at their option, (a) to repay Senior Debt, or (b) to the acquisition of assets to be used in a Permitted Business. Pending the final application of any such Net Proceeds, the Issuers may temporarily reduce the Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuers shall be required to make an offer to all Holders of Notes (an "Asset Sale (such Fair Market Value Offer") to purchase the maximum principal amount of Notes that may be determined on purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of contractually agreeing purchase, in accordance with the procedures set forth in Section 3.9 To the extent that the aggregate amount of Notes tendered pursuant to effect such an Asset Sale) Sale Offer and (ii) (A) at least 75% indebtedness ranking pari passu in right of payment with the Notes with similar repurchase rights is less than the Excess Proceeds, the Issuers may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Subordinated Notes surrendered by Holders thereof and indebtedness ranking pari passu in right of payment with the Notes with similar repurchase rights surrendered by the holders thereof exceeds the amount of Excess Proceeds, a pro rata portion of the consideration paid Excess Proceeds (based on the principal amount of indebtedness surrendered) shall be applied to the Company or such Restricted Subsidiary from such Asset Sale purchase of Senior Subordinated Notes, and all other Asset Sales since the Issue Date, Trustee shall select the Senior Subordinated Notes to be purchased on a cumulative pro rata basis; provided, is however, that the Issuers shall not be obligated to purchase Senior Subordinated Notes in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (denominations other than liabilities integral multiples of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu $1,000. Upon completion of such absence of liabilityoffer to purchase, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) Excess Proceeds shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) be reset at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madezero."

Appears in 2 contracts

Samples: Indenture (Foamex International Inc), Indenture (Foamex International Inc)

Asset Sales. No later than the first Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds shall be deposited into a Controlled Account on the same Business Day as receipt thereof), Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) The Company will notin an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, and will not cause or permit any Restricted Subsidiary to, consummate any (ii) to the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $250,000 in any twelve consecutive month period, upon delivery of a written notice to Administrative Agent, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,000 or more in any twelve consecutive month period has been consented to by Administrative Agent and Required Lenders); provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall, if requested by Administrative Agent, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent. Notwithstanding the foregoing, with respect to the Las Vegas Termination Payments, the Company shall be required to prepay the Obligations by an amount equal to the Las Vegas Excess Termination Payments in accordance with Section 2.14(b) (in lieu of reinvestment), unless the Company has notified the Administrative Agent, in writing and prior to 30 days after receipt by Holdings or its Subsidiaries of any Las Vegas Termination Payments, of the specific investment into which such Las Vegas Excess Termination Payments shall be re-invested, in which case, the Las Vegas Excess Termination Payments may be reinvested in accordance with this Section 2.13(a) in such designated specific investment (or applied to prepay the Obligations in accordance with this Section 2.13(a)). In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earlier of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time last day of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale one hundred eighty (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale180) day period, and (ii) (A) at least 75% the date of the consideration paid to the Company or such Restricted Subsidiary from occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Reinvestment Amounts to the Notes) Obligations as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or set forth in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.14(b).

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.), Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)

Asset Sales. At the Parent Entities’ request, the Company Entities agree to, and to cause the Company Subsidiaries and their and the Company Subsidiaries’ respective Representatives to, use their reasonable best efforts to facilitate, negotiate and consummate the sale, transfer, divestiture or other disposition (aeach, a “Company Sale”) of such Subsidiaries, business organizations, divisions, business units or assets of the Company Entities or the Company Subsidiaries (whether by a sale of equity interests or assets, merger or otherwise), in each case as identified by the Parent Entities from time to time (but excluding (i) TKO and any of its Subsidiaries and (ii) the agency representation business of Xxxxxxx Xxxxxx Endeavor Entertainment, LLC and its Subsidiaries). The Company will notEntities shall keep any Company Sale Net Proceeds received upon consummation of any such Company Sale in a segregated account and not use any such Company Sale Net Proceeds for any purpose other than making such Company Sale Net Proceeds available at the Closing to the extent requested by the Parent Entities to fund a portion of the Required Amount or to the extent necessary to satisfy any working capital needs for which the Company Entities do not otherwise have cash available (whether pursuant to cash or cash equivalents on hand or available commitments under revolving credit facilities or otherwise) to satisfy (any such amount used to satisfy any working capital needs in accordance with the foregoing, the “Company Sale Net Proceeds Deficit”). The Company Entities shall promptly notify the Parent Entities of the occurrence of any event that results in a Company Sale Net Proceeds Deficit and will the amount of such Company Sale Net Proceeds Deficit. Notwithstanding the foregoing, the Company Entities shall not cause or permit be required to enter into any Restricted Subsidiary to, consummate any Asset definitive agreement with respect to a Company Sale unless either (i) the consummation of the Company or such Restricted Subsidiary, as Sale is conditioned upon consummation of the case may be, receives consideration Mergers and the other Transactions required to be consummated at the time Closing or (ii) such definitive agreement is approved by the Executive Committee and concurrently with the entry into such definitive agreement providing for such Company Sale, one or more of the Equity Investors provide the Parent Entities with an equity commitment letter in a form substantially similar to the Equity Commitment Letter providing for a commitment that will be effective upon the consummation of such Asset Sale at least Company Sale, equal to the Fair Market Value amount of the assets applicable Company Sale Net Proceeds Deficit. If approved by the Executive Committee, the Company Entities shall use reasonable best efforts, and property subject shall cause the Company Subsidiaries to such Asset Sale (such Fair Market Value use reasonable best efforts, to be determined on take the date actions set forth in Section 7.16 of contractually agreeing the Company Disclosure Letter. In the event that any new equity commitment letters are obtained in accordance with this Section 7.16, any reference in this Agreement to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid “Equity Commitment Letter” will be deemed to mean the Equity Commitment Letter and any new equity commitment letters to the Company or such Restricted Subsidiary from such Asset Sale extent then in effect and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since “Financing” or the Issue Date does not exceed in “Equity Financing” will be deemed to mean the aggregate 5% of equity financing contemplated by the Adjusted Consolidated Net Tangible Assets of Equity Commitment Letter as modified pursuant to the Company determined at the time such Asset Sale is madeforegoing.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Endeavor Group Holdings, Inc.), Agreement and Plan of Merger (Emanuel Ariel)

Asset Sales. No later than the first business day following the date of receipt, in any given month, by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds (aas hereinafter defined) The Company will notin excess of the aggregate amount of Budgeted Expenses (as defined in Section 15(e) hereof) as set forth in the most recent Budget (as defined in Section 15(e)) required to be delivered pursuant to Section 15(e) hereof, Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an aggregate amount equal to such excess amount; provided, that (A) such Net Asset Sale Proceeds shall be deposited directly by the payee thereof into a deposit account held by Borrower at Amegy Bank, N.A. and will (B) if, within 30 days of Borrower’s receipt of such Net Asset Sale Proceeds, Borrower has not cause paid one or permit any Restricted Subsidiary tomore such Budgeted Expenses in an aggregate amount equal to 100% of the amount of such proceeds not otherwise required to prepay the Forbearance Period Advances, consummate then Borrower shall prepay the Forbearance Period Advances as set forth in Section 3(i) hereof in an amount equal to the amount not so paid. “Net Asset Sale Proceeds” means, with respect to any Asset Sale unless (ias hereinafter defined), an amount equal to: (1) cash payments received by Borrower or any of its Subsidiaries from such Asset Sale, minus (2) any bona fide direct costs and expenses incurred in connection with such Asset Sale to the Company extent paid or payable to non-Affiliates, including (x) income or gains taxes payable or reasonably estimated to be payable by the seller as a result of any gain recognized in connection with such Restricted SubsidiaryAsset Sale during the tax period the sale occurs, (y) payment of the obligations (other than the Loans) secured by a Lien on the assets in question, which is required to be repaid under the terms thereof as the case may bea result of such Asset Sale, receives consideration at the time and (z) a reasonable reserve for any adjustments in respect to sale price of such assets and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale at least equal to the Fair Market Value undertaken by Borrower or any of the assets and property subject to its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds). “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including, without limitation, the capital stock of any Credit Party, other than inventory or other assets sold or leased, or cash or cash equivalents disposed of, in each case, in the ordinary course of business. For purposes of clarification, “Asset Sale” shall (i) include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such Fair Market Value to be determined on event (other than payments in the ordinary course of business for accrued and unpaid amounts due through the date of contractually agreeing to effect such Asset Saletermination or modification) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness exclude any taking or other liabilities disposition by means of the Company power of eminent domain, condemnation or a Restricted Subsidiary (other than liabilities of the Company similar power, threat or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is maderight.

Appears in 2 contracts

Samples: Second Forbearance Agreement (Infinity Energy Resources, Inc), Second Forbearance Agreement (Infinity Energy Resources, Inc)

Asset Sales. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option to (a1) to repay Indebtedness secured by such assets and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (2) to purchase Replacement Assets or to make a capital expenditure. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding sentence shall constitute “Excess Proceeds.” Within 30 days after the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that is pari passu with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in the Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate offer price in any Asset Sale unless (i) Offer shall be equal to 100% of principal amount plus accrued and unpaid interest to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or may use such Restricted Subsidiary, as Excess Proceeds for any purpose not otherwise prohibited by the case may be, receives consideration at Indenture. If the time aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale at least equal Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the Fair Market Value principal amount of the assets Notes and property subject to such other pari passu Indebtedness tendered. Upon completion of each Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liabilityOffer, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) Excess Proceeds shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) be reset at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madezero.

Appears in 2 contracts

Samples: HHG Distributing, LLC, HHG Distributing, LLC

Asset Sales. (a) The Company will not, and will not cause Not later than the tenth Business Day following the date of receipt by Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, the Borrower shall prepay the Loans in an aggregate amount equal to such Net Asset Sale Proceeds; provided that (i) so long as no Event of Default shall have occurred and be continuing and (ii) to the Company extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $25,000,000, the Borrower shall have the option, directly or such Restricted Subsidiarythrough one or more of the Operating Credit Parties or any of their respective Subsidiaries, as to invest Net Asset Sale Proceeds within three hundred sixty (360) days of receipt thereof (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within three hundred sixty (360) days following receipt thereof) in long-term productive assets of the case may begeneral type used in the business of Holdings and its Subsidiaries, receives consideration in capital expenditures, in inventory or in other assets used or useful in the business of the Borrower and its Subsidiaries; provided that, if at the time that any such prepayment would be required the Borrower is also required to repay or repurchase or to offer to repurchase or repay Senior Secured Debt of such Asset Sale at least equal the Borrower or any of its Subsidiaries permitted under Section 6.1 pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Senior Secured Debt with the proceeds of such Asset Sale (such Fair Market Value Senior Secured Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Asset Sale Proceeds on a pro rata basis to the prepayment of the Loans and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.10(a) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time, with it being agreed that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since net proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence net proceeds shall be allocated to the Loans in accordance with the terms hereof); provided, further, that to the extent the holders of liabilityOther Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within ten Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeterms hereof.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (PLBY Group, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)

Asset Sales. (ai) The Promptly after the occurrence of an Asset Sale, the Company will not, shall deliver written notice thereof via facsimile and will not cause or permit any Restricted Subsidiary to, consummate any overnight courier (an "Asset Sale unless Notice") to each of the Holders. At any time after the receipt of the Asset Sale Notice, a Holder may require the Company to redeem, with the Available Asset Sale Proceeds all or any portion of the Preferred Shares held by such Holder by delivering written notice thereof (the "Asset Sale Redemption Notice") to the Company, which Asset Sale Redemption Notice shall indicate the number of such Preferred Shares such Holder is electing to redeem; provided that if the aggregate number amount of Preferred Shares to be redeemed from such Holder and the other Holders with the cash proceeds of an Asset Sale exceed the Available Asset Sale Proceeds for such Asset Sale, the Company shall redeem the Preferred Shares presented for redemption on a pro rata basis with such proceeds. Each Preferred Share subject to redemption by the Company pursuant to this Section 8(e) shall be redeemed by the Company at a price equal to at a price per Preferred Share equal to the greater of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) Conversion Amount and (ii) the product of (A) the Conversion Rate in effect at least 75% such time as such Holder delivers an Asset Sale Redemption Notice and (B) the greater of the consideration paid to Closing Sale Price of the Company or such Restricted Subsidiary from Common Stock on the Trading Day following such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities Closing Sale Price of the Common Stock on the date the Holder delivers the Asset Sale Redemption Notice (the "Asset Sale Redemption Price"). The Company or a Restricted Subsidiary shall deliver on the fifth (other than liabilities 5th) Business Day (the "Asset Sale Redemption Date") after the Company's receipt of the Company or first Asset Sale Redemption Notice the applicable Asset Sale Redemption Price to all Holders that deliver a Restricted Subsidiary that are by their terms subordinated Asset Sale Redemption Notice prior to such fifth (5th) Business Day after the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor Company's receipt of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such first Asset Sale is madeRedemption Notice.

Appears in 2 contracts

Samples: Investors Rights Agreement (Cano Petroleum, Inc), Agreement and Plan of Merger (Cano Petroleum, Inc)

Asset Sales. No later than the fifth Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay or cause to be prepaid the Loans as set forth in Section 2.12(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that no prepayment shall be required pursuant to this Section 2.11(a) in respect of such Net Asset Sale Proceeds for which Holdings or Tronox US shall have delivered to Administrative Agent no later than the fifth Business Day following the date of receipt of such Net Asset Sale Proceeds a certificate of an Authorized Officer certifying in good faith that (aA) The Company will notno Specified Event of Default and no other Event of Default (other than in respect of any covenants hereunder) has occurred and is continuing, (B) no Event of Default in respect of any covenants hereunder has occurred and is continuing (and if such Authorized Officer cannot make such certification, it may certify that Holdings and Tronox US intend to cure (if such cure is possible), or obtain a waiver in respect of, such Event of Default within 30 days after the date of delivery of such certificate (it being understood and agreed that, solely in the circumstances contemplated by this clause (B), such Net Asset Sale Proceeds shall not be required to be prepaid and shall not be permitted to be reinvested hereunder until the earlier of such cure (if such cure is possible) or waiver and the end of such 30 day period (and pending resolution of the foregoing, such Net Asset Sale Proceeds shall have been deposited in the Blocked Reinvestment Account) and if such cure (if such cure is possible) or waiver has not occurred by the end of such 30 day period, Borrower shall immediately prepay or cause to be prepaid the Loans as set forth in Section 2.12(b) with such Net Asset Sale Proceeds)), and will not cause (C) during the Permitted Reinvestment Period, Holdings and its Subsidiaries intend to reinvest (or permit any Restricted Subsidiary to, consummate any intend during such period to commit in writing to reinvest) such Net Asset Sale unless Proceeds in assets with respect to which the Collateral Agent will have a Lien of at least the same priority as the priority of its Lien on the assets sold or disposed of, that such assets in which it will reinvest are useful in the business of Holdings or any of its Subsidiaries and if such Net Asset Sale Proceeds are from an Asset Sale of all or a portion of any Facility such Net Asset Sale Proceeds shall not be reinvested in Equity Interests (it being understood and agreed that, with respect to any Net Asset Sale Proceeds covered by such certificate of an Authorized Officer that are not reinvested during the Permitted Reinvestment Period as set forth above, (x) no Default or Event of Default shall be deemed to have occurred merely because Holdings previously provided a certificate indicating its intent to reinvest (so long as such certificate was not submitted in bad faith) and (y) Holdings or Tronox US shall cause Borrower not later than the first Business Day after the end of such Permitted Reinvestment Period to prepay the Loans as set forth in Section 2.12(b) in an aggregate amount equal to such Net Asset Sale Proceeds not reinvested); provided, however, that (i) the Company or such Restricted Subsidiary, as the case no reinvestment otherwise permitted hereunder may be, receives consideration be made if at the time of any such Asset Sale at least equal to the Fair Market Value reinvestment an Event of the assets Default has occurred and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and is continuing, (ii) (A) at least 75% any Net Asset Sale Proceeds received by a Non-US Entity from a sale or other disposition of property or assets otherwise permitted under the consideration paid Credit Documents shall be excluded from this prepayment obligation to the Company extent applicable law or regulation prohibits transfer of such Restricted Subsidiary from proceeds to Borrower or a Guarantor; and (iii) if such Net Asset Sale and all other Asset Sales since Proceeds are not subject to the Issue Date, on a cumulative basis, is restrictions described in the form of cashimmediately preceding clause (ii), Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant Holdings or Tronox US shall cause such Non-US Entity to distribute such Net Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Sale Proceeds to the Notes) as a result of which Borrower promptly after receipt thereof for distribution in accordance with the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeprovisions hereof.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)

Asset Sales. (a) The Company will not, and will not cause No later than the fifth Business Day following the date of receipt by Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, the applicable Borrowers shall prepay the Loans as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, (x) that except as provided in clause (3) of the provisio to Section 6.8(b)(10), (i) so long as no Specified Default or Event of Default shall have occurred and be continuing, such Borrowers shall have the Company option, directly or such Restricted Subsidiarythrough one or more of its Subsidiaries, as the case may be, receives consideration at the time of such to invest Net Asset Sale at least equal to the Fair Market Value Proceeds within three hundred sixty-five days of receipt thereof in long-term productive assets of the assets general type useful in the business of Parent Borrower and property subject its Subsidiaries, including in Equity Interests of a Person engaged in a Similar Business and (ii) if such Borrowers intend to invest such Asset Sale proceeds, but a Default (such Fair Market Value to be determined but not an Event of Default or a Specified Default) exists on the date of contractually agreeing to effect receipt of such Net Asset SaleSale Proceeds, such Borrowers may hold such proceeds (without making any such investment) until such Default is cured, but if such Default becomes an Event of Default (or a Specified Default occurs), such Borrowers shall immediately prepay the Loans with such Net Asset Sale Proceeds as set forth in Section 2.15(b) and (iiy) (A) at least 75% of the consideration paid to the Company extent any applicable documentation governing Permitted First Priority Refinancing Debt requires Parent Borrower to prepay or make an offer to purchase such Restricted Subsidiary from Permitted First Priority Refinancing Debt with such Net Asset Sale and all other Asset Sales since Proceeds, the Issue Date, on a cumulative basis, is in the form amount of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including prepayment required pursuant to Asset Swapsthis Section 2.14(a) or shall be deemed to be the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated amount equal to the Notesproduct of (1) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities Net Asset Sale Proceeds multiplied by (2) a fraction, the numerator of which is the outstanding principal amount of the Term Loans and for so long as the denominator of which is the sum of the outstanding principal amount of the Permitted First Priority Refinancing Debt with respect to which such liabilities remain a requirement to prepay or make an offer to purchase exists and the outstanding unless principal amount of the Term Loans; provided further that the Borrower shall not be permitted to reinvest any such indemnifying party Net Asset Sale Proceeds in accordance with this Section 2.14(a) to the extent the Borrower applies any such Net Asset Sale Proceeds to prepay or purchase Permitted First Priority Refinancing Debt, and to the extent Parent Borrower makes any such prepayment or purchase of Permitted First Priority Refinancing Debt, Parent Borrower shall prepay Term Loans in accordance with this paragraph within one (or its long term debt securities1) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms Business Day of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% prepayment or purchase without giving effect to clause (x) of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madethis proviso.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (IMS Health Holdings, Inc.), Credit and Guaranty Agreement (IMS Health Holdings, Inc.)

Asset Sales. (a) The Company Borrower will not, and will not cause or permit any Restricted Subsidiary to, consummate sell, transfer, lease or otherwise dispose of any asset, including any capital stock, nor will the Borrower permit any Subsidiary to issue any additional shares of its capital stock or other ownership interest in such Subsidiary, except: (a) sales of (i) inventory, (ii) used, worn-out, obsolete or surplus equipment and (iii) Permitted Investments, in each case in the ordinary course of business; (b) sales, transfers and dispositions (i) to the Borrower or a Subsidiary Loan Party or (ii) to a Special Purpose Subsidiary, so long as any sale, transfer or disposition pursuant to this clause (ii) is for consideration that is at least equal to the aggregate fair market value of the property subject thereto (determined at the time of consummation thereof in good faith by the board of directors of the Borrower); (c) the Borrower and the Subsidiaries may make Asset Sale unless Sales, provided that the aggregate assets sold pursuant to Asset Sales (other than Excluded Asset Sales) in any Fiscal Year shall not have accounted for more than 20% of the consolidated revenues of the Borrower and the Subsidiaries for the immediately preceding Fiscal Year as shown on the consolidated financial statements of the Borrower and the Subsidiaries for such immediately preceding Fiscal Year, and provided further that (i) the Company consideration received for the related assets (other than the related assets taken pursuant to any taking of assets described in clause (c) of the definition of the term "Asset Sale") shall be in an amount at least equal to (A) the fair market value thereof (taking into account any restrictions on the use of such related assets that the Borrower or any such Subsidiary may require in connection with the asset sale in question) or (B) a lower amount if the Board of Directors of the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at shall determine in good faith that the time sale of such Asset Sale at least equal related assets for such lower amount is desirable in order to minimize losses being incurred by the Fair Market Value Borrower or such Subsidiary, as the case may be, with respect to such related assets and that such sale for such lower amount is in the best interest of the assets and property subject to Borrower or such Asset Sale (such Fair Market Value to be determined on Subsidiary, as the date of contractually agreeing to effect such Asset Sale) and case may be; (ii) (A) at least 7550% of the consideration paid to received (excluding (A) any non-cash consideration received in connection with the Company exchange of assets of the Borrower or such Restricted any Subsidiary from such Asset Sale for similar assets of any third party and all other Asset Sales since the Issue Date, on a cumulative basis, is (B) any consideration received in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated liability under any lease pertaining to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.related assets

Appears in 2 contracts

Samples: Credit Agreement (Supermarkets General Holdings Corp), Credit Agreement (Pathmark Stores Inc)

Asset Sales. No later than the seventh Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay or cause to be prepaid the Loans as set forth in Section 2.12(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that no prepayment shall be required pursuant to this Section 2.11(a) in respect of such Net Asset Sale Proceeds for which Holdings or Tronox US shall have delivered to Administrative Agent no later than the fifth Business Day following the date of receipt of such Net Asset Sale Proceeds a certificate of an Authorized Officer certifying in good faith that (aA) The Company will notno Specified Event of Default and no other Event of Default (other than in respect of any covenants hereunder) has occurred and is continuing, (B) no Event of Default in respect of any covenants hereunder has occurred and is continuing (and if such Authorized Officer cannot make such certification, it may certify that Holdings and Tronox US intend to cure (if such cure is possible), or obtain a waiver in respect of, such Event of Default within 30 days after the date of delivery of such certificate (it being understood and agreed that, solely in the circumstances contemplated by this clause (B), such Net Asset Sale Proceeds shall not be required to be prepaid and shall not be permitted to be reinvested hereunder until the earlier of such cure (if such cure is possible) or waiver and the end of such 30 day period (and pending resolution of the foregoing, such Net Asset Sale Proceeds shall have been deposited in the Blocked Reinvestment Account) and if such cure (if such cure is possible) or waiver has not occurred by the end of such 30 day period, Borrower shall immediately prepay or cause to be prepaid the Loans as set forth in Section 2.12(b) with such Net Asset Sale Proceeds)), and will not cause (C) during the Permitted Reinvestment Period, Holdings and its Subsidiaries intend to reinvest (or permit any Restricted Subsidiary to, consummate any intend during such period to commit in writing to reinvest) such Net Asset Sale unless Proceeds in assets with respect to which the Collateral Agent will have a Lien of at least the same priority as the priority of its Lien on the assets sold or disposed of, that such assets in which it will reinvest are useful in the business of Holdings or any of its Subsidiaries and if such Net Asset Sale Proceeds are from an Asset Sale of all or a portion of any Facility such Net Asset Sale Proceeds shall not be reinvested in Equity Interests (it being understood and agreed that, with respect to any Net Asset Sale Proceeds covered by such certificate of an Authorized Officer that are not reinvested during the Permitted Reinvestment Period as set forth above, (x) no Default or Event of Default shall be deemed to have occurred merely because Holdings previously provided a certificate indicating its intent to reinvest (so long as such certificate was not submitted in bad faith) and (y) Holdings or Tronox US shall cause Borrower not later than the first Business Day after the end of such Permitted Reinvestment Period to prepay the Loans as set forth in Section 2.12(b) in an aggregate amount equal to such Net Asset Sale Proceeds not reinvested); provided, however, that (i) the Company or such Restricted Subsidiary, as the case no reinvestment otherwise permitted hereunder may be, receives consideration be made if at the time of any such Asset Sale at least equal to the Fair Market Value reinvestment an Event of the assets Default has occurred and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and is continuing, (ii) (A) at least 75% any Net Asset Sale Proceeds received by a Non-US Entity from a sale or other disposition of property or assets otherwise permitted under the consideration paid Credit Documents shall be excluded from this prepayment obligation to the Company extent applicable law or regulation prohibits transfer of such Restricted Subsidiary from proceeds to Borrower or a Guarantor; and (iii) if such Net Asset Sale and all other Asset Sales since Proceeds are not subject to the Issue Date, on a cumulative basis, is restrictions described in the form of cashimmediately preceding clause (ii), Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant Holdings or Tronox US shall cause such Non-US Entity to distribute such Net Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Sale Proceeds to the Notes) as a result of which Borrower promptly after receipt thereof for distribution in accordance with the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeprovisions hereof.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)

Asset Sales. (a) The Company will not, and will not cause Not later than the tenth Business Day following the date of receipt by Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, the Borrower shall prepay the Loans in an aggregate amount equal to such Net Asset Sale Proceeds; provided that (i) so long as no Event of Default shall have occurred and be continuing and (ii) to the Company extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $25,000,000, the Borrower shall have the option, directly or such Restricted Subsidiarythrough one or more of the Operating Credit Parties or any of their respective Subsidiaries, as to invest Net Asset Sale Proceeds (other than the case may beNet Asset Sale Proceeds from an Asset Sale of any Specified Non-Core Asset B) within three hundred sixty (360) days of receipt thereof (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within three hundred sixty (360) days following receipt thereof) in long‑term productive assets of the general type used in the business of Holdings and its Subsidiaries, receives consideration in capital expenditures, in inventory or in other assets (other than Cash and Cash Equivalents) used or useful in the business of the Borrower and its Subsidiaries; provided that, if at the time that any such prepayment would be required the Borrower is also required to repay or repurchase or to offer to repurchase or repay Senior Secured Debt of such Asset Sale at least equal the Borrower or any of its Subsidiaries permitted under Section 6.1 pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Senior Secured Debt with the proceeds of such Asset Sale (such Fair Market Value Senior Secured Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Asset Sale Proceeds on a pro rata basis to the prepayment of the Loans and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.10(a) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time, with it being agreed that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since net proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence net proceeds shall be allocated to the Loans in accordance with the terms hereof); provided, further, that to the extent the holders of liabilityOther Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within ten Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeterms hereof.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (PLBY Group, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)

Asset Sales. (a) The Company will not, and will not cause No later than the first Business Day following the date of receipt by Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, Borrower shall prepay the Loans as set forth in Section 2.12(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time no prepayment shall be required pursuant to this Section 2.11(a) in respect of such Net Asset Sale at least equal Proceeds (other than with respect to the Fair Market Value Net Asset Sale Proceeds of the assets and property subject sale of any Non-Core Real Estate Assets) in an aggregate amount not to such Asset Sale (such Fair Market Value exceed $35,000,000 from the Closing Date through the applicable date of determination so long as Holdings shall have delivered to be determined on Administrative Agent no later than the first Business Day following the date of contractually agreeing receipt of such Net Asset Sale Proceeds a certificate of an Authorized Officer certifying that (x) no Default or Event of Default has occurred and is continuing, and (y) Holdings and its Subsidiaries intend to effect reinvest (or commit in writing to reinvest) such Net Asset Sale) Sale Proceeds in useful assets of Borrower and its Subsidiaries during the Permitted Reinvestment Period and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including no prepayment shall be required pursuant to Asset Swapsthis Section 2.11(a) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor Net Asset Sale Proceeds of the Company or such Restricted Subsidiary for sale of the full Non-Core Real Estate Assets in an amount not to exceed $50,000,000 from the Closing Date through the applicable date of such liabilities and for determination, so long as Holdings shall have delivered to Administrative Agent no later than the first Business Day following the date of receipt of such liabilities remain outstanding unless such indemnifying party Net Asset Sale Proceeds a certificate of an Authorized Officer certifying that (x) no Default or Event of Default has occurred and is continuing, and (y) Holdings and its Subsidiaries intend to reinvest (or commit in writing to reinvest) such Net Asset Sale Proceeds in the business of Borrower and its long term debt securitiesSubsidiaries during the Permitted Reinvestment Period; provided further, (i) all such Net Asset Sale Proceeds shall be held in the Asset Sale Proceeds Reinvestment Account pending reinvestment in accordance with this Section 2.11(a) until the earlier of (x) the expiration of the applicable Permitted Reinvestment Period or, solely to the extent that such Net Asset Sale Proceeds have been committed in writing to be invested during such Permitted Reinvestment Period, ninety days after the expiration of such Permitted Reinvestment Period, and (y) the Maturity Date and (ii) on and after the delivery by Administrative Agent of a Carve-Out Event Notice in accordance with Section 8.2, all such Net Asset Sale Proceeds (up to the amount of the Carve-Out Cap) shall have an Investment Grade Rating (be deposited into the Carve-Out Account and shall be reserved for payment of amounts due and owing to Committees in accordance with no indication of a negative outlook or credit watch with negative implicationsSection 8.2; provided, in any casehowever, that contemplates such indemnifying party (any Net Asset Sale Proceeds received by a Foreign Subsidiary of Borrower from a sale or its long term debt securities) failing other disposition of property or assets otherwise permitted under the Credit Documents shall be excluded from this prepayment obligation to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) extent applicable law or (B) the Fair Market Value of all forms regulation prohibits transfer of such consideration other than Permitted Consideration since the Issue Date does not exceed proceeds to Borrower or a Guarantor or such transfer would render such Foreign Subsidiary insolvent or reasonably likely to become insolvent or result in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madean adverse tax consequence.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (Tronox Inc), Credit and Guaranty Agreement

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.

Appears in 2 contracts

Samples: Supplemental Indenture (Laredo Petroleum, Inc.), Indenture (Laredo Petroleum, Inc.)

Asset Sales. Not later than the tenth Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds (aother than any Net Asset Sale Proceeds from (x) The Company will notthe TLA Disposition and/or (y) any Dispositions of any Specified Non-Core Asset B, and which Net Asset Sale Proceeds will not cause or permit any Restricted Subsidiary tobe subject to this Section 2.10(a)), consummate any the Borrower shall prepay the Loans in an aggregate amount equal to such Net Asset Sale unless Proceeds; provided that (i) so long as no Event of Default shall have occurred and be continuing and (ii) to the Company extent that aggregate Net Asset Sale Proceeds (excluding any Net Asset Sale Proceeds from (x) the TLA Disposition and/or (y) any Dispositions of any Specified Non-Core Asset B) from the Closing Date through the applicable date of determination do not exceed $25,000,000, the Borrower shall have the option, directly or such Restricted Subsidiarythrough one or more of the Operating Credit Parties or any of their respective Subsidiaries, as to invest Net Asset Sale Proceeds within three hundred sixty (360) days of receipt thereof (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within three hundred sixty (360) days following receipt thereof) in long‑term productive assets of the case may begeneral type used in the business of Holdings and its Subsidiaries, receives consideration in capital expenditures, in inventory or in other assets (other than Cash and Cash Equivalents) used or useful in the business of the Borrower and its Subsidiaries; provided that, if at the time that any such prepayment would be required the Borrower is also required to repay or repurchase or to offer to repurchase or repay Senior Secured Debt of such Asset Sale at least equal the Borrower or any of its Subsidiaries permitted under Section 6.1 pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Senior Secured Debt with the proceeds of such Asset Sale (such Fair Market Value Senior Secured Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Asset Sale Proceeds on a pro rata basis to the prepayment of the Loans and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.10(a) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time, with it being agreed that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since net proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence net proceeds shall be allocated to the Loans in accordance with the terms hereof); provided, further, that to the extent the holders of liabilityOther Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within ten Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeterms hereof.

Appears in 2 contracts

Samples: Credit and Guaranty Agreement (PLBY Group, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)

Asset Sales. (a) The Company will Holdings shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) Holdings or the Company or such applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale sold or otherwise disposed of (such Fair Market Value to be as determined on in good faith by the date of contractually agreeing to effect such Asset Sale) and Management Committee), (ii) (A) at least 75% of the consideration paid to received by Holdings or the Company or such Restricted Subsidiary Subsidiary, as the case may be, from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, shall be cash or Cash Equivalents, Liquid Securities, Exchanged Properties ; provided that the amount of (including pursuant to Asset Swapsa) any liabilities (as shown on Holdings or the assumption by the acquiring Person such Restricted Subsidiary's most recent balance sheet) of Indebtedness Holdings or other liabilities of the Company or a any such Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the NotesDebentures) as a result that are assumed by the transferee of which the Company and the remaining any such assets, (b) any Debentures or other obligations received by Holdings or any such Restricted Subsidiaries Subsidiary from such transferee that are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company immediately converted by Holdings or such Restricted Subsidiary harmless from into cash (to the extent of the cash received), and against (c) any lossDesignated Noncash Consideration received by Holdings or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, liability or cost in respect taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 10% of Total Assets at the time of the receipt of such assumed liabilities accompanied by Designated Noncash Consideration (with the posting fair market value of a letter each item of credit Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (issued by a commercial bank that has iii) upon the consummation of an Investment Grade Rating) Asset Sale, Holdings shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof to reinvest in favor Productive Assets or to repay Indebtedness under the Senior Credit Facilities. Pending the final application of the Company any such Net Cash Proceeds, Holdings or such Restricted Subsidiary for may invest such Net Cash Proceeds in Cash Equivalents. On the full 366th day after an Asset Sale or such earlier date, if any, as the Management Committee or such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause (iii) of the preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds that have not been applied on or before such liabilities and for so long Net Proceeds Offer Trigger Date as such liabilities remain outstanding unless such indemnifying party permitted in clause (or its long term debt securitiesiii) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall have be applied by Holdings or such Restricted Subsidiary to make an Investment Grade Rating offer to purchase (with no indication the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, (x) from all holders of Senior Notes on a negative outlook or credit watch with negative implications, in any case, pro rata basis that contemplates such indemnifying party (or its long term debt securities) failing amount of Senior Notes equal to have an Investment Grade Rating) the Net Proceeds Offer Amount at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5a price equal to 100% of the Adjusted Consolidated Net Tangible Assets principal amount of the Company determined Senior Notes to be purchased, plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, or (y) from all Holders on a pro rata basis that amount of Debentures equal to the Net Proceeds Offer Amount at a price equal to 100% of the Accreted Value thereof on the date of repurchase (if such date of repurchase is prior to August 1, 2003) or 100% of the principal amount of the Debentures to be purchased (if such date of repurchase is on or after August 1, 2003), plus, in each case, accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration (including any Designated Noncash Consideration) received by Holdings or any Restricted Subsidiary of Holdings, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non- cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by Holdings and its Restricted Subsidiaries aggregates at least $10.0 million, at which time Holdings or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, Holdings and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is madefor fair market value (as determined in good faith by the Management Committee of the General Partner); provided that any consideration not constituting Productive Assets received by Holdings or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall be subject to the provisions of the two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Debentures tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, Holdings may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Debentures pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.

Appears in 2 contracts

Samples: Anthony Crane Sales & Leasing Lp, Anthony Crane Holdings Capital Corp

Asset Sales. (a) The Company will Except for the sale of assets required to be ----------- sold to conform with governmental requirements, the Borrower shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, consummate any Asset Sale unless (i) Sale, if the Company or aggregate net book value of all such Restricted SubsidiaryAsset Sales consummated during the four calendar quarters immediately preceding any date of determination would exceed 25% of the total assets of the Borrower and its Consolidated Subsidiaries as of the beginning of the Borrower's most recently ended full fiscal quarter; provided, as the case may behowever, receives consideration at the time of that any such Asset Sale at least equal will be disregarded for purposes of -------- ------- the 25% limitation specified above: (a) if any such Asset Sale is in the ordinary course of business of the Borrower and its Subsidiaries; (b) if the assets subject to any such Asset Sale are worn out or are no longer useful or necessary in connection with the operation of the businesses of the Borrower or its Subsidiaries; (c) if the assets subject to any such Asset Sale are being transferred to a Wholly-Owned Subsidiary of the Borrower; (d) to the Fair Market Value of extent the assets and property subject to any such Asset Sale involve transfers of assets of or equity interests in connection with the Caribou Investments Joint Venture; (e) if the proceeds from any such Asset Sale (such Fair Market Value to be determined on the date i) are, within 12 months of contractually agreeing to effect such Asset Sale) and , invested or reinvested by the Borrower or any Subsidiary in a Permitted Business, (ii) (A) at least 75% are used by the Borrower or a Subsidiary to repay Debt of the consideration paid to the Company Borrower or such Restricted Subsidiary from Subsidiary, or (iii) are retained by the Borrower or its Subsidiaries; or (f) if, prior to any such Asset Sale Sale, Xxxxx'x and all other Asset Sales since S&P confirm the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant then current Borrower Ratings after giving effect to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSale.

Appears in 2 contracts

Samples: Credit Agreement (PPL Corp), Day Credit Agreement (PPL Corp)

Asset Sales. Except for the sale of assets required to be sold to conform with governmental requirements, the Applicable Reporting Entity, and in the case of the Guarantor, its Material Subsidiaries, shall not consummate any Asset Sale, if the aggregate net book value of all such Asset Sales consummated during the four calendar quarters immediately preceding any date of determination would exceed 25% of the total assets of the Applicable Reporting Entity and its Consolidated Subsidiaries as of the beginning of the Applicable Reporting Entity’s most recently ended full fiscal quarter; provided, however, that any such Asset Sale will be disregarded for purposes of the 25% limitation specified above: (a) The Company will not, and will not cause or permit if any Restricted Subsidiary to, consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to is in the Fair Market Value ordinary course of business of the Applicable Reporting Entity and its Subsidiaries; (b) if the assets and property subject to any such Asset Sale are worn out or are no longer useful or necessary in connection with the operation of the businesses of the Applicable Reporting Entity or its Subsidiaries; (c) if the assets subject to any such Asset Sale are being transferred to a Wholly Owned Subsidiary of the Applicable Reporting Entity; (d) if the proceeds from any such Asset Sale (such Fair Market Value to be determined on the date i) are, within twelve (12) months of contractually agreeing to effect such Asset Sale) and , invested or reinvested by the Applicable Reporting Entity or any Subsidiary thereof in a Permitted Business, (ii) (A) at least 75% are used by the Applicable Reporting Entity or any Subsidiary thereof to repay Debt of the consideration paid Applicable Reporting Entity or any Subsidiary thereof, or (iii) are retained by the Applicable Reporting Entity or any Subsidiary thereof; or (e) if, prior to the Company or such Restricted Subsidiary from any such Asset Sale and all other Asset Sales since Sale, both Rating Agencies confirm the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant then-current Borrower’s Applicable Ratings after giving effect to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.Sale. Section 6.09

Appears in 2 contracts

Samples: Revolving Credit Agreement (Louisville Gas & Electric Co /Ky/), Revolving Credit Agreement (Louisville Gas & Electric Co /Ky/)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) the Company or such the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale sold or otherwise disposed of (such Fair Market Value to be as determined on in good faith by the date of contractually agreeing to effect such Asset Sale) and Management Committee), (ii) (A) at least 75% of the consideration paid to received by the Company or such the Restricted Subsidiary Subsidiary, as the case may be, from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, shall be cash or Cash Equivalents, Liquid Securities, Exchanged Properties ; provided that the amount of (including pursuant to Asset Swapsa) any liabilities (as shown on the Company's or the assumption by the acquiring Person of Indebtedness or other liabilities such Restricted Subsidiary's most recent balance sheet) of the Company or a any such Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result that are assumed by the transferee of which any such assets, (b) any notes or other obligations received by the Company and the remaining or any such Restricted Subsidiaries Subsidiary from such transferee that are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold immediately converted by the Company or such Restricted Subsidiary harmless from into cash (to the extent of the cash received), and against (c) any lossDesignated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, liability or cost in respect taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 10% of Total Assets at the time of the receipt of such assumed liabilities accompanied by Designated Noncash Consideration (with the posting fair market value of a letter each item of credit Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for the purposes of this provision, and (issued by a commercial bank that has iii) upon the consummation of an Investment Grade Rating) Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof to reinvest in favor Productive Assets or to repay Indebtedness under the Senior Credit Facilities. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary for may invest such Net Cash Proceeds in Cash Equivalents. On the full 366th day after an Asset Sale or such earlier date, if any, as the Management Committee or such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause (iii) of the preceding paragraph (each, a "Net Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds that have not been applied on or before such liabilities and for so long Net Proceeds Offer Trigger Date as such liabilities remain outstanding unless such indemnifying party permitted in clause (or its long term debt securitiesiii) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall have be applied by the Company or such Restricted Subsidiary to make an Investment Grade Rating offer to purchase (with no indication the "Net Proceeds Offer") on a date (the ''Net Proceeds Offer Payment Date") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of Notes equal to the Net Proceeds Offer Amount at a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing price equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount of the Notes to be purchased, plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase; provided, however, that if at any time any non cash consideration (including any Designated Noncash Consideration) received by the Company determined or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $10.0 million, at which time the time Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be a "Net Proceeds Offer Trigger Date"). Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is madefor fair market value (as determined in good faith by the Management Committee of the General Partner); provided that any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall be subject to the provisions of the two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of the Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.

Appears in 2 contracts

Samples: Anthony Crane Sales & Leasing Lp, Anthony Crane Holdings Capital Corp

Asset Sales. Not later than five (5) Business Days following the receipt by Holdings, any Borrower or any Restricted Subsidiary of any Net Asset Sale Proceeds in excess of $5,000,000 in the aggregate during any twelve-month period, the Borrower Representative shall prepay the Term Loans, subject to Sections 2.13(g) and 2.14(b) in an aggregate amount equal to one hundred percent (100%) of such Net Asset Sale Proceeds in excess of $5,000,000; provided that, so long as no Event of Default shall have occurred and be continuing or would immediately arise therefrom, such proceeds with respect to any such Asset Sale shall not be required to be so applied in accordance with this clause (a) The Company will not, and will not cause to the extent that the Borrower Representative shall have notified Administrative Agent on or permit any Restricted Subsidiary to, consummate any prior to the end of the five-Business-Day period noted above stating that such Net Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value Proceeds are expected to be determined on the date of contractually agreeing to effect such Asset Salereinvested in assets (other than working capital, except for short term capital assets) and (ii) (A) at least 75% of the consideration paid to the Company used or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is useful in the form business of cash, Cash Equivalents, Liquid Securities, Exchanged Properties Holdings and its Restricted Subsidiaries (including pursuant to Asset Swapsa Permitted Acquisition) or to be contractually committed to be so reinvested (such amounts “Asset Sale Reinvestment Amounts”), within twelve (12) months following receipt of such Net Asset Sale Proceeds; provided that such Asset Sale Reinvestment Amounts that have been contractually committed to be reinvested during such twelve (12) month period shall be reinvested within 180 days after the assumption expiration of such twelve (12) month period); provided, however, that if at the time that any such prepayment would be required, the Borrowers (or any Restricted Subsidiary of the Borrowers) are required to prepay or offer to repurchase any Incremental Equivalent Debt or any Permitted Pari Passu Secured Refinancing Debt, in each case, that is secured by the acquiring Person Collateral on a pari passu basis and that is pari passu in right of Indebtedness or other liabilities payment, with the Obligations under Initial Term Loans and Revolving Loans secured on a first lien basis, pursuant to the terms of the Company documentation governing such Indebtedness (such Incremental Equivalent Debt or a Restricted Subsidiary (other than liabilities Permitted Pari Passu Secured Refinancing Debt required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of such Net Asset Sale Proceeds, then the Borrower Representative may apply such portion of the Company or Net Asset Sale Proceeds on a Restricted Subsidiary pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided, further, that are by their terms subordinated the portion of such Net Asset Sale Proceeds allocated to the Notes) as a result Other Applicable Indebtedness shall not exceed the amount of which such Net Asset Sale Proceeds required to be allocated to the Company Other Applicable Indebtedness pursuant to the terms thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Asset Sale Proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of liabilitythe Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.13(a) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchase or prepaid, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within ten (10) Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank Loans in accordance with the terms hereof. In the event that has an Investment Grade Rating) in favor any portion of the Company or Asset Sale Reinvestment Amounts are neither reinvested nor contractually committed to be so reinvested within such Restricted Subsidiary for twelve (12) month period (and actually reinvested within 180 days after the full amount expiration of such liabilities and for so long twelve (12) month period), such unused portion shall be applied within ten (10) Business Days after the last day of such period as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, mandatory prepayment as provided in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered intothis Section 2.13(a) (“Permitted Consideration”without giving effect to the first proviso in this clause (a) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeabove).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate make any Asset Sale unless Disposition, except (i) the Asset Dispositions described on Schedule 11.6 hereof, (ii) additional Asset Dispositions of the Company and its Subsidiaries (other than BST and its Subsidiaries) in an aggregate amount (excluding the amount of any Asset Dispositions described on Schedule 11.6) based on Fair Market Value not to exceed: (a) with respect to the period from the Closing Date through December 31, 2007, $6,420,000, or (b) during any fiscal year thereafter, $11,000,000, and with respect to which, subject to the mandatory prepayment provisions set forth in Section 9.3, the Company or such Restricted SubsidiarySubsidiary intends to apply the Net Proceeds Amount arising from any such Transfer under clauses (a) or (b) hereof to a Debt Prepayment Application or to reinvestments in the Company or such Subsidiary (in the form of capital expenditures or otherwise) within 365 days after such Transfer, as and the case may be, receives consideration at the time Company or such Subsidiary applies such Net Proceeds Amount within such period and (iii) Asset Dispositions of such Asset Sale at least equal to the BST and its Subsidiaries in an aggregate amount based on Fair Market Value not to exceed €4,000,000 per fiscal year of BST. Notwithstanding the assets foregoing, the Company will not, and property subject will not permit any Subsidiary to, make any Asset Disposition to any Project Subsidiary (other than any Asset Disposition consisting of an equity Investment in, or loan constituting WLR Subordinated Indebtedness to, any such Asset Sale Project Subsidiary, by (such Fair Market Value to be determined i) WLR or any WLR Affiliate or (ii) the Company with the proceeds of an equity Investment in, or loan constituting WLR Subordinated Indebtedness to, the Company by WLR or any WLR Affiliate) if, on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Dateproposed Transfer, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost default then exists in respect of any Indebtedness owing by such assumed liabilities accompanied by Project Subsidiary. Notwithstanding anything to the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of contrary herein, the Company will not make any Asset Disposition or such Restricted Subsidiary for the full amount Transfer of such liabilities and for so long any Pledged Collateral (as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed defined in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madePledge Agreement).

Appears in 1 contract

Samples: Subordinated Note Purchase Agreement (International Textile Group Inc)

Asset Sales. (aI) The No later than the first Business Day following the date of receipt by Company will not, and will not cause or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds (other than Formation Divestiture Proceeds), Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net Asset Sale Proceeds allocated for investment pursuant to this clause (ii) but not yet so reinvested do not exceed $5,000,000, Company shall have the option, directly or through one or more of its Guarantor Subsidiaries, to invest Net Asset Sale Proceeds (other than Formation Divestiture Proceeds) within one hundred eighty (180) days of receipt thereof in long-term useful assets of the general type used in the business of Company and its Guarantor Subsidiaries (provided that "long-term" assets for such Restricted Subsidiarypurpose shall mean any property having a remaining useful life of at least 5 years) or in IT Reinvestment Property (provided that the aggregate amount of all such investments in IT Reinvestment Property shall not exceed $10,000,000); provided further, as that pending any such investment all such Net Asset Sale Proceeds shall be applied to prepay Revolving Loans to the case may be, receives consideration at extent outstanding on the time date of such Asset Sale at least equal to (without a reduction in Revolving Commitments); (II) no later than the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on first Business Day following the date of contractually agreeing receipt by the Company or any of its Subsidiaries of any Formation Divestiture Proceeds, Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to effect such Asset SaleFormation Divestiture Proceeds (or, in the case of any Formation Divestiture Proceeds received on or prior to the Third Amendment Primary Effective Date, an amount equal to such proceeds less the sum of the Formation Transaction Cost Reserve and the Westchester Prepayment Reserve); provided, however, that (i) so long as no Default or Event of Default shall have occurred and be continuing and (ii) contemporaneously with the Westchester Prepayment, Mariner Health Care of Nashville, Inc. executes a Mortgage on the Westchester Property pursuant to Section 5.11, Company may apply up to $5,100,000 of Formation Divestiture Proceeds to make the Westchester Prepayment; provided further, that to the extent such Formation Divestiture Proceeds constitute Formation Promissory Note Interest Proceeds, commencing on April 1, 2004 and continuing thereafter on each October 1 and April 1 until the Formation Promissory Note has been paid in full, Company shall prepay the Loans and/or the Revolving Commitments shall be reduced as set forth in Section 2.15(b) in an amount equal to all such Formation Promissory Note Interest Proceeds received during the immediately preceding six-month period; and (AIII) at least 75% no later than 65 days following the Third Amendment Secondary Effective Date, the Company shall prepay the Loans and/or the Revolving Commitments shall be reduced as set forth in Section 2.15(b) in an amount equal to, without duplication, the sum of (1) the excess, if any, of the consideration Formation Transaction Cost Reserve over the bona fide direct costs incurred in connection with the Formation Divestitures (which bona fide direct costs may include, without duplication, the Company's reasonable projection of such costs to be incurred in connection with any Delayed Formation Divestiture that has not theretofore occurred provided that such projection is reasonably satisfactory to the Administrative Agent), and (2) the excess, if any, of the Westchester Prepayment Reserve over the amount actually paid to by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Mariner Health Care of Nashville, Inc. to or for the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities account of the Company or a Restricted Subsidiary (other than liabilities holder of the Company or a Restricted Subsidiary that are by their terms subordinated Westchester Mortgage to effectuate the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeWestchester Prepayment.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Mariner Health Care Inc)

Asset Sales. Not later than the fifth Business Day following the date of receipt by the Company or any other Group Member of any Net Cash Proceeds in respect of any Asset Sale, the Company shall prepay the Borrowings in an aggregate amount equal to such Net Cash Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, the Company may, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer of the Company to the effect that the Company intends to cause an amount equal to such Net Cash Proceeds (aor a portion thereof specified in such certificate) The to be reinvested in long-term productive assets of the general type used in the business of the Company will notand the other Group Members within 365 days after the receipt of such Net Cash Proceeds, and will certifying that, as of the date thereof, no Default or Event of Default has occurred and is continuing, in which case during such period the Company shall not cause be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any amount equal to such Net Cash Proceeds that are not so reinvested by the end of such period shall be applied to prepay the Borrowings promptly upon the expiration of such period. Any amount set forth in any such certificate shall, pending reinvestment or permit any Restricted Subsidiary toapplication to make a prepayment as provided in this Section 2.13(a), consummate any Asset Sale unless be, at the option of the Company, (i) held in a Deposit Account of the Company that is subject to a Control Agreement in favor of the Collateral Agent or (ii) applied to prepay outstanding revolving loans under the Existing Credit Agreement or any Replacement Facility (in which case an amount of the revolving commitments under the Existing Credit Agreement or such Restricted SubsidiaryReplacement Facility equal to the amount of the proceeds so applied shall be restricted and not available for credit extensions under the Existing Credit Agreement or such Replacement Facility other than for borrowings thereunder the proceeds of which are promptly reinvested or applied to make a prepayment as provided in this Section 2.13(a)). Notwithstanding the foregoing, any Net Cash Proceeds required to be applied to Borrowings pursuant to this Section 2.13(a) shall be applied ratably among the Loans and, to the extent required by the terms of the Existing Credit Agreement, any Replacement Facility or any Permitted Additional First Lien Debt then outstanding, the principal amount of Indebtedness under the Existing Credit Agreement, such Replacement Facility and/or such Permitted Additional First Lien Debt then outstanding, as the case may be, receives consideration at and the time of such Asset Sale at least equal to the Fair Market Value prepayment of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Borrowings required pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securitiesthis Section 2.13(a) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madebe reduced accordingly.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Chrysler Group LLC)

Asset Sales. The Borrower shall not, and shall not permit any Material Subsidiary to, (a) The Company will notsell, and will not cause transfer, lease or permit otherwise dispose of all or any Restricted substantial portion of its assets or (b) sell, transfer, lease or otherwise dispose of any capital stock or other Equity Interest of any Subsidiary toto any Person or (c) as to a Material Subsidiary only, consummate issue its own Equity Interests, except that the Borrower (or any Asset Sale unless such Material Subsidiary) may sell, transfer or otherwise dispose of (i) pursuant to a Qualified Stock Agreement (or the Company issuance of Equity Interests in Radian Asset Assurance Inc. having equivalent effect), Equity Interests (but not such assets) of Radian Asset Assurance Inc. (and in connection therewith, of Radian Asset Securities Inc.) for consideration determined by the Board of Directors to be the fair market value thereof, (ii) Equity Interests of Xxxxxxx, for consideration determined by the Board of Directors to be the fair market value thereof, (iii) Equity Interests or assets of a Subsidiary to the Borrower or to another Subsidiary but only so long as, prior to any such Restricted Subsidiarysale, transfer or disposition, the Collateral Agent advises the Borrower in writing of its determination that such sale, transfer or disposition does not impair or otherwise adversely affect the Lien of the Security Documents or the prepayments (if, as and when they may thereafter occur) required pursuant to Section 2.11, and (iv) other assets, so long as the aggregate value of all assets sold pursuant to this clause (iv) does not exceed $10,000,000 in any Fiscal Year, in each instance so long as both immediately before and immediately after giving effect to such sale, no Default shall have occurred and be continuing; provided that this Section 6.05 shall not be construed to restrict the Borrower’s and its Subsidiaries’ (A) use of cash in the conduct of the business of, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company Borrower or a Restricted Subsidiary (other than liabilities of the Company or in a Restricted Subsidiary manner that are by their terms subordinated does not cause a Default to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) occur or (B) the Fair Market Value sale of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed financial assets, investment property and general intangibles held for investment (as defined above) in the aggregate 5% ordinary course of their business and consistent with past practice, and provided further that the Adjusted Consolidated Net Tangible Assets sale or issuance by Radian Asset Securities Inc. (or by another Subsidiary serving an equivalent function) of its perpetual preferred Equity Interests (or similar securities) pursuant to a ‘put’ to a money market committed preferred custodial trust affiliated with the Company determined at Borrower’s auction rate money market trust preferred ‘soft capital’ program as it exists on the time such Asset Sale is madeFirst Amendment Effective Date (or to another trust or Person under a similar program) shall be excluded from the restrictions of this Section 6.05.

Appears in 1 contract

Samples: Credit Agreement (Radian Group Inc)

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) No later than the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on tenth Business Day following the date of contractually agreeing receipt by any Loan Party of any Net Proceeds from Asset Sales in excess of $1,000,000 in the aggregate in any Fiscal Year, and to effect the extent a Cash Sweep will not be required with respect thereto, Borrower shall prepay the Term Loans as set forth in Section 2.11(a) in an aggregate amount equal to such Asset SaleNet Proceeds; provided, that if Borrower has delivered to Agent prior written notice of Xxxxxxxx’s intention to apply such monies (the “Reinvestment Amounts”) and to reinvest in or to the costs of purchase of other assets used or useful in the business of the Loan Parties, including capital expenditures (iitogether, a “Reinvestment”), the Loan Parties shall have the option to apply such Reinvestment Amounts to a Reinvestment within 180 days after the initial receipt of such Reinvestment Amounts (the “Initial Reinvestment Period”) (A) at least 75% or, if such Reinvestment is not completed within the Initial Reinvestment Period, such Reinvestment Amounts are committed pursuant to a binding written agreement within such Initial Reinvestment Period to be applied, and are so applied, within 180 days of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities end of the Company or a Restricted Subsidiary Initial Reinvestment Period (other than liabilities of such 180 day period, plus the Company or a Restricted Subsidiary Initial Reinvestment Period, the “Reinvestment Period”)); provided, further that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries if any such Reinvestment Amounts are no longer liable for intended to be or cannot be so Reinvested during the applicable Reinvestment Period, an amount equal to any such liabilities Reinvestment Amounts shall be applied to the prepayment of the Term Loans within ten (10) Business Days after the Borrower reasonably determines that such Reinvestment Amounts are no longer intended to be or cannot be so Reinvested, and in lieu no event later than the end of such absence the applicable Reinvestment Period as set forth in Section 2.10. Each mandatory prepayment due hereunder made on account of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities Obligations shall be accompanied by the posting applicable Specified Premium pursuant to Section 2.8(b). For avoidance of doubt, Net Proceeds of any Extraordinary IP Rights Transaction shall not be considered an “Asset Sale” for the purposes of this Section 2.9(a), but shall be the subject of a letter of credit (issued by a commercial bank that has an Investment Grade Ratingmandatory prepayment pursuant to Section 2.9(d) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madethis Section 2.9(a).

Appears in 1 contract

Samples: Financing Agreement (Danimer Scientific, Inc.)

Asset Sales. (a) The Company Borrower covenants and agrees with each Finance Party that, so long as the Agreement shall remain in effect (except contingent indemnification obligations) and until the outstanding principal amount of the Facility and interest thereon, all fees and all other expenses or amounts payable under any Finance Document have been paid in full, unless the Lenders shall otherwise consent in writing, the Borrower will not, and will not permit any of its Restricted Subsidiaries to, cause or permit any Restricted Subsidiary tomake an Asset Sale, consummate any Asset Sale unless (ix) the Company Borrower or such any of its Restricted SubsidiarySubsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined in good faith by the Board of Directors of the Borrower) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (Ay) at least 75% of the consideration paid to therefor received by the Company Borrower or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Subsidiary, as the Issue Date, on a cumulative basiscase may be, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties ; provided that the amount of: (including pursuant to Asset Swapsa) any liabilities (as shown on the Borrower’s or the assumption by the acquiring Person of Indebtedness or other liabilities such Restricted Subsidiary’s most recent balance sheet) of the Company Borrower or a any Restricted Subsidiary of the Borrower (other than liabilities of the Company or a Restricted Subsidiary that are by their terms fully subordinated to the NotesCOFACE Facility Obligations) as a result that are assumed by the transferee of any such assets and from which the Company and Borrower or any Restricted Subsidiary are released in writing, (b) any notes or other obligations or other securities or assets received by the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company Borrower or such Restricted Subsidiary harmless of the Borrower from and against any loss, liability or cost in respect of such assumed liabilities accompanied transferee that are converted by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company Borrower or such Restricted Subsidiary for of the full amount Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received), and (c) any Designated Non-cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such liabilities and for so long Asset Sale having an aggregate Fair Market Value (as such liabilities remain outstanding unless such indemnifying party determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this paragraph (or its long term debt securitiesc) shall have an Investment Grade Rating (with no indication that is at that time outstanding, not to exceed 5.0% of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) Total Assets of the Borrower at the time of the indemnity is entered into) receipt of such Designated Non-cash Consideration (“Permitted Consideration”) or (B) with the Fair Market Value of all forms each item of such consideration other than Permitted Designated Non-cash Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined being measured at the time such Asset Sale is madereceived and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of this provision.

Appears in 1 contract

Samples: Coface Covered Export Credit Agreement (Hughes Network Systems, LLC)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, consummate any an Asset Sale unless unless: (i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) or Equity Interests issued or sold or otherwise disposed of; and (ii) (A) at least 75% of the consideration paid to therefor received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, (a) cash or Cash Equivalents, Liquid Securities, Exchanged Properties Equivalents or (b) properties and capital assets (including pursuant franchises and licenses required to Asset Swapsown and operate such properties) or to be used in the assumption same lines of business being conducted by the acquiring Person Company or any Subsidiary at such time, or Equity Interests in one or more Persons which thereby become Wholly Owned Subsidiaries of Indebtedness the Company whose assets consist primarily of such properties and capital assets; provided that the amount of (x) any liabilities (as shown on the Company's or other liabilities such Subsidiary's most recent balance sheet) of the Company or a Restricted any Subsidiary (other than contingent liabilities of the Company or a Restricted Subsidiary and liabilities that are by their terms subordinated to the NotesNotes or any guarantee thereof) as that are assumed by the transferee of any such assets pursuant to a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold customary novation agreement that releases the Company or such Restricted Subsidiary harmless from further liability and against (y) any losssecurities, liability notes or cost in respect of such assumed liabilities accompanied other obligations received by the posting of a letter of credit (issued Company or any such Subsidiary from such transferee that are immediately converted by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 365 days after an Asset Sale, the full amount Company may, at its option, (a) apply such Net Cash Proceeds to repay Senior Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (b) commit in writing to apply such liabilities and for so long as Net Cash Proceeds to a Related Business Investment. Pending the final application of any such liabilities remain Net Cash Proceeds, the Company may temporarily reduce Senior Debt outstanding unless under the Senior Credit Facility or otherwise invest such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, Net Cash Proceeds in any case, manner that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated prohibited by this Indenture. Any Net Tangible Assets of the Company determined at the time such Cash Proceeds from Asset Sale is made.Sales

Appears in 1 contract

Samples: Northland Cable Television Inc

Asset Sales. (a) The Company will not, and will not cause No later than the first Business Day following the date of receipt by Intermediate Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds (including, for the avoidance of doubt, Net Asset Sale Proceeds which result from the sale of Merchant Accounts or customer accounts of NTS) in excess of $250,000 in the aggregate since the Closing Date, Companies shall prepay the Term Loans and/or the Term Loan Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, Companies shall have the option, directly or through one or more Subsidiaries, to invest all or any portion of such Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of Companies if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,000 or more has been consented to by Administrative Agent and Required Lenders) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Sale Proceeds and (y) such Permitted Acquisition is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall be held at all times prior to such reinvestment, in a Controlled Account. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Companies prior to the earliest of (i) the Company last day of such one hundred twenty (120) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has not been executed in accordance with the other provisions of this Agreement), (ii) the last day of such one hundred eighty (180) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement) and (iii) the date of the occurrence of a Default or such Restricted Subsidiaryan Event of Default, as the case may be, receives consideration at the time of Administrative Agent shall apply such Asset Sale at least equal Reinvestment Amounts to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is Obligations as set forth in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.14(b).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Newtek Business Services Corp.)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale (if other than a Casualty Event) at least equal to the Fair Market Value fair market value (as determined in good faith by the Board of Directors of the assets Company (including as to the value of all consideration other than Qualified Cash Equivalents) and property set forth in an Officers' Certificate delivered to the Trustee) of the Property or Equity Interests that are the subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and , (ii) (A) at least 7580% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all therefor (if other Asset Sales since the Issue Date, on than a cumulative basis, Casualty Event) is in the form of cash, Qualified Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swapsiii) or the assumption Net Cash Proceeds received by the acquiring Person Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale shall be remitted to the Trustee for deposit into the Asset Sale Proceeds Account free of Indebtedness or other liabilities of the Company or a Restricted Subsidiary any Lien (other than liabilities the Lien of this Indenture, the Security Documents and the Working Capital Facility), and the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any lossSubsidiary, liability or cost as the case may be) shall take such action as shall be necessary under 6.03 hereof in respect of such assumed liabilities accompanied by order to maintain the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor Lien of the Company or Trustee on any other consideration received in such Restricted Subsidiary for the full amount of such liabilities Asset Sale and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securitiesiv) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time Cash Proceeds from such Asset Sale shall be retained in the Asset Sale Proceeds Account and shall be available (x) in the case of Net Cash Proceeds of a Casualty Event, to be applied to the repair, rebuilding or replacement of the Property subject to such Casualty Event and (y) in the case of any other Net Cash Proceeds of such Asset Sale, to the reinvestment into Property that is madeused or useful in a Permitted Business, provided that to the extent the Net Cash Proceeds referred to in this clause (iv) have not been so applied to such repair, rebuilding, replacement or reinvestment within 365 days following the receipt of such Net Cash Proceeds (or within such shorter period as shall be specified by the Company), such Net Cash Proceeds shall be applied to the making of an Asset Sale Offer as provided in the next-following paragraph. The aggregate amount of the Net Cash Proceeds referred to in the preceding clause (iv) remaining at the end of such period after the application of such Indenture Net Cash Proceeds as described in such clause (iv) to the repair, rebuilding, replacement or reinvestment referred to therein, shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds equals or exceeds $10,000,000 (taking into account income earned on such Excess Proceeds), the Issuer will be required to make an offer to all Holders (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at a purchase price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in Article III hereof, it being understood that, to the extent any such Excess Proceeds held in the Asset Sale Proceeds Account are required to be applied to the payment of the Working Capital Facility, then only the portion of the Excess Proceeds remaining after such payment shall be applied to the making of an Asset Sale Offer. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero for purposes of the first sentence of this paragraph.

Appears in 1 contract

Samples: Intercreditor Agreement (Global Crossing North America Inc)

Asset Sales. (a) The Company Borrower will not, and will not cause or permit any Restricted Subsidiary its Subsidiaries to, consummate sell, transfer or otherwise dispose of any material asset to a Person that is not a Wholly Owned Subsidiary other than pursuant to a bona fide arm’s length transaction or, with respect to transactions subject to §8.13, as permitted by §8.13. Neither Borrower nor any Subsidiary thereof shall sell, transfer or otherwise dispose of any Real Estate in one transaction or a series of transactions during any four (4) consecutive fiscal quarters in excess of an amount equal to thirty-five percent (35%) of Gross Asset Sale unless Value, except (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time result of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) a condemnation or casualty and (ii) (A) at least 75for the granting of Permitted Liens. For the purpose of calculating the 35% threshold in the preceding sentence, in the event of any sale, transfer or other disposition of any Real Estate by Borrower or any Subsidiary to any Person which is not a Wholly Owned Subsidiary of Borrower, only the portion of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is Real Estate in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) which Borrower or the assumption by transferring Subsidiary does not retain an interest shall be counted toward such threshold. A transfer from Borrower to a Wholly Owned Subsidiary of Borrower or among Wholly Owned Subsidiaries of Borrower shall not count against the acquiring Person of Indebtedness thirty-five percent (35%) limit. Notwithstanding the foregoing or any other liabilities provision of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liabilityLoan Documents, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its the Grizzly Credit Agreement is in effect, Grizzly Ventures LLC may sell the Grizzly Property, and/or so long term debt securities) shall have an Investment Grade Rating (with no indication as the Fox Credit Agreement is in effect Fox Properties LLC may sell the Fox Property, for a purchase price conclusively determined in good faith by the board of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing directors of REIT to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms be fair market value of such property under the circumstances provided that at least seventy-five percent (75%) of the consideration is cash or the assumption of debt by the buyer and the proceeds are used to repay the principal, interest and other than Permitted Consideration since obligations due under the Issue Date does not exceed Grizzly Credit Agreement or the Fox Credit Agreement, as applicable, with any excess applied to other secured debt, reinvested in the aggregate 5% of business or used to offer to repay the Adjusted Consolidated Net Tangible Assets of Obligations and the Company determined at the time such Asset Sale is madeSenior Notes.

Appears in 1 contract

Samples: Credit Agreement (Dupont Fabros Technology, Inc.)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, consummate any an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an officers' certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of. In the event that the Company consummates an Asset Sale involving all or substantially all of the assets of the Company and property subject its Subsidiaries (a "Company Sale"), within 30 days after the receipt of the proceeds of such Asset Sale, the Company shall make an offer (pro rata in proportion to the principal amount (or accreted value, if applicable) outstanding in respect of any assets sale offer required by the terms of any pari passu Indebtedness incurred in accordance with the Indenture) to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the proceeds of such Asset Sale, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued-and unpaid interest to the date of purchase, in accordance with the procedures set forth herein. To the extent that any proceeds remain after consummation of an Asset Sale Offer, the Company may use such proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer surrendered by Holders thereof (such Fair Market Value to be determined on and any pari passu Indebtedness, as aforesaid) exceeds the date amount of contractually agreeing to effect the proceeds of such Asset Sale) and (ii) (A) at least 75% of , the consideration paid Trustee shall select the Notes to be purchased on a pro rata basis. Notwithstanding anything to the contrary provided herein, in the event of an Asset Sale that is not a Company or such Restricted Subsidiary Sale, the Company may use the proceeds from such sale to (a) make an Asset Sale and all other Asset Sales since the Issue DateOffer, on a cumulative basis, is (b) repurchase Notes in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties open market transactions and/or (including pursuant to Asset Swapsc) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or invest in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeBusinesses.

Appears in 1 contract

Samples: Exx Inc/Nv/

Asset Sales. No Loan Party will sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of their Equity Interests in IMTT or Atlantic (or any Subsidiary of the Guarantor which is a direct or indirect holding company of IMTT or Atlantic) or permit the sale, transfer, lease or other disposition of all or substantially all of the assets of IMTT or Atlantic, except that such sales, transfers, leases or other dispositions shall be permitted; provided that (a) The Company will notno Lender shall have any obligation to make Revolving Loans hereunder during the period commencing with the consummation of such sale, transfer, lease or disposal and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless ending on the earlier of (iy) the Company or such Restricted Subsidiary, as date that the case may be, receives consideration at Revolving Loans are repaid and the time of such Asset Sale at least Commitments are permanently reduced by an amount equal to the Fair Market Value of the assets and property subject to such Asset Sale Net Cash Proceeds thereof (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Salewithout deducting for any reinvestment) and (iiz) the date that one of S&P or Mxxxx’x (Aif only one such rating agency then maintains a Debt Rating) or at least 75% two of S&P, Mxxxx’x and Fitch (if two or more such rating agencies then maintain a Debt Rating) reaffirms its respective Debt Rating after accounting for the consideration paid effects thereof (such period, the “Ratings Reaffirmation Period”) and (b) if (y) neither S&P nor Mxxxx’x then maintains a Debt Rating or (z) S&P or Mxxxx’x (if only one such rating agency then maintains a Debt Rating) or at least two of S&P, Mxxxx’x and Fitch (if two or more such rating agencies then maintain a Debt Rating), as applicable, does not reaffirm (or downgrades) its respective Debt Rating within 30 days of such sale or other disposition, the Net Cash Proceeds thereof (without deducting for any reinvestment) shall be applied (within 5 days thereafter) to repay the Revolving Loans and permanently reduce the Commitments; provided that if S&P or Mxxxx’x (if only one such rating agency then maintains a Debt Rating) or if at least two of S&P, Mxxxx’x and Fitch (if two or more such rating agencies then maintain a Debt Rating) reaffirms or upgrades its Debt Rating within 30 days of such sale or other disposition, such Net Cash Proceeds used to prepay Revolving Loans may be adjusted for any reinvestment pursuant to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form definition of cash, Net Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeProceeds.

Appears in 1 contract

Samples: Guaranty Agreement (Macquarie Infrastructure Corp)

Asset Sales. (a) The Company will not, and will not cause Not later than the third Business Day following the date of receipt by the Borrower or permit any Restricted Subsidiary toof any Net Proceeds in respect of any Disposition of assets made in reliance on Section 6.8(b)(v) or 6.8(b)(xi) (other than any such Disposition or Dispositions resulting, consummate together with Insurance/Condemnation Events, in Net Proceeds not exceeding $5,000,000 during any Asset Sale unless Fiscal Year), the Borrower shall prepay the Term Borrowings in an aggregate amount equal to 100% of such Net Proceeds; provided that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may, prior to the date of the required prepayment, deliver to the General Administrative Agent and the Term Facility Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in non-current assets useful in the business of the Borrower and its Restricted Subsidiaries or in Permitted Acquisitions within 365 days after the receipt of such Net Proceeds, and certifying that, as of the date thereof, no Default or Event of Default has occurred and is continuing, in which case during such period the Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested by the end of such period (or within a period of 365 days thereafter if by the end of such initial 365-day period the Borrower or any of its Restricted Subsidiaries shall have entered into a binding agreement with a third party so to reinvest such Net Proceeds) shall be applied to prepay the Term Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Disposition of assets that would otherwise be required by this Section 2.14(a) to be applied to prepay the Term Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness, but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Disposition of assets (with the amount of the prepayment of the Term Borrowings that would otherwise have been required pursuant to this Section 2.14(a) being reduced accordingly), provided that (i) such portion shall not exceed the Company or product of (A) the amount of such Restricted SubsidiaryNet Proceeds multiplied by (B) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Term Borrowings, as the in each case may be, receives consideration at the time of occurrence of such Asset Sale at least equal to the Fair Market Value Disposition of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) assets, and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or event the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu holders of such absence of liabilityPermitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securitiesevent within 10 Business Days after the date of rejection) failing be applied to have an Investment Grade Rating) at prepay the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeTerm Borrowings.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Tivity Health, Inc.)

Asset Sales. (a) The Company will notEach First Lien Priority Representative, for itself and on behalf of each other First Lien Priority Debt Party represented by it, agrees that it will not cause object to or permit oppose (or join in, or support, any Restricted Subsidiary toother objection or opposition by any other Person), consummate a motion to sell, liquidate, or otherwise dispose of Collateral under Section 363 or Section 1129 of the Bankruptcy Code, or support any Asset Sale unless other proposal or bid to purchase such Collateral by any other Person, if the requisite Super Senior Secured Parties have consented to such sale, liquidation, or other disposition so long as it provides (i) to the Company extent such sale or such Restricted Subsidiaryother disposition is to be free and clear of Liens, that the Liens securing the Super Senior Obligations and the First Lien Priority Debt Obligations will attach to the proceeds of the sale or other disposition on the same basis of priority as the case may be, receives consideration at Liens on the time of such Asset Sale at least equal Shared Collateral securing the Super Senior Obligations rank to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined Liens on the date of contractually agreeing Shared Collateral securing the First Lien Priority Debt Obligations pursuant to effect such Asset Sale) and this Agreement, (ii) that either (A) at least 75% the net Proceeds of the consideration paid to the Company such sale or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including disposition shall be applied pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) Section 4.01 or (B) the Fair Market Value Liens securing the Super Senior Obligations and the First Lien Priority Debt Obligations will attach to the proceeds of all forms the sale or other disposition on the same basis of priority as the Liens on the Shared Collateral securing the Super Senior Obligations rank to the Liens on the Shared Collateral securing the First Lien Priority Debt Obligations pursuant to this Agreement, and (iii) that such sale or other disposition shall be made pursuant to a process or procedures that have been approved by the Bankruptcy Court. Any First Lien Priority Debt Parties may bid for or purchase Shared Collateral at any public, private, or judicial foreclosure upon such Shared Collateral initiated by any Super Senior Secured Party or any other Person, or any sale of Shared Collateral during an Insolvency or Liquidation Proceeding so long as (x) no Super Senior Secured Party has submitted a bid or other proposal (or has consented to a bid or other proposal from any other Person) in connection with such public or judicial foreclosure, and (y) such credit bid (including under Section 363(k) of the Bankruptcy Code) provides for the payment in full in cash of the Super Senior Aggregate Obligations at the closing of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madesale.

Appears in 1 contract

Samples: Intercreditor Agreement (CPI Card Group Inc.)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary to, Subsidiaries to consummate any an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and or Equity Interests issued or sold or otherwise disposed of; (ii) the fair market value is determined by (Aa) an executive officer of the Company if the value is less than $20.0 million and evidenced by an Officer’s Certificate delivered to the Trustee or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of such Board of Directors delivered to the Trustee; and (iii) at least 75% of the consideration paid received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents or any combination thereof. For purposes of this Section 4.10 each of the following shall be deemed to be cash: (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary transferee that are converted by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability into cash or cost in respect Cash Equivalents within 180 days following the closing of such assumed liabilities accompanied by Asset Sale, to the posting extent of a letter the cash or Cash Equivalents received in that conversion. Within 365 days after the receipt of credit any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option (issued by a commercial bank that has an Investment Grade Ratingi) in favor to repay, repurchase, redeem, defease or otherwise acquire or retire Senior Debt of the Company or any Indebtedness of a Restricted Subsidiary; (ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business; (iii) to make a capital expenditure in a Permitted Business; or (iv) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Restricted Subsidiary for Net Proceeds, the full Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will be required to make an offer (an “Asset Sale Offer”) to all Holders and to the extent required, to all holders of other Indebtedness of the Company that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes (in integral multiples of $1,000) and such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication other pari passu Indebtedness of a negative outlook or credit watch with negative implications, the Company that may be purchased out of the Excess Proceeds. The offer price in any case, that contemplates such indemnifying party (or its long term debt securities) failing Asset Sale Offer will be equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount of Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company determined at may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the time aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale is madeOffer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of such conflict.

Appears in 1 contract

Samples: Indenture (Parker Drilling Co /De/)

Asset Sales. (a) The Company will not, and will not cause or permit Following the receipt of any Restricted Subsidiary to, consummate Net Cash Proceeds of any Asset Sale unless after the Closing Date, (ix) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time option of the Borrower pursuant to a written notice of reinvestment delivered to the Administrative Agent, the Borrower may reinvest all or any portion of such Asset Sale at least equal to the Fair Market Value Net Cash Proceeds in assets useful for its business within 90 days following receipt of such Net Cash Proceeds; provided that (1) if the assets and property subject to such Asset Sale constituted Term Priority Collateral, such reinvestment may not be made in assets other than non-current assets constituting Term Priority Collateral (2) if an Event of Default shall have occurred and be continuing, the Borrower shall not be permitted to make any such Fair Market Value reinvestments (other than pursuant to be determined on a legally binding commitment that the date Borrower entered into at a time when no Event of contractually agreeing Default existed or was continuing), and (3) if the assets subject to effect such Asset Sale) Sale constituted Xxxxxxxx Collateral, such reinvestment may only be in assets constituting Xxxxxxxx Collateral and (ii(y) other than the Net Cash Proceeds of ABL Priority Collateral, to the extent applied as required by the ABL Credit Agreement or the Intercreditor Agreement, or to repay obligations under the ABL Credit Agreement (provided that Net Cash Proceeds of ABL Priority Collateral other than Inventory shall be subject to this clause (y) to the extent not prohibited under the ABL Credit Agreement), (A) at least 75% any Net Cash Proceeds not reinvested shall be applied to the prepayment of the consideration paid to the Company or such Restricted Subsidiary Loans on a ratable basis within five (5) Business Days, and (B) any remaining Net Cash Proceeds from such Asset Sale and all other Asset Sales since on the Issue Date, last day of such 90-day period specified in clause (x) shall be applied to the prepayment of the Loans on a cumulative ratable basis. Notwithstanding the foregoing, is in the form of cash, no such prepayment shall be required under this Section 2.03(b) with respect to (A) Extraordinary Receipts; and (B) Net Cash Equivalents, Liquid Securities, Exchanged Properties Proceeds from an Asset Sale by (including pursuant to Asset Swaps1) or the assumption by the acquiring Person of Indebtedness or other liabilities a Foreign Subsidiary of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Borrower except to the Notes) extent that any such proceeds are repatriated to the United States (such amount to be net of an amount equal to the additional taxes of Holdings, the Borrower or its Subsidiaries that would be payable or reserved against as a result of such repatriation, as reasonably determined by the Borrower in consultation with the Administrative Agent), which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees Loan Parties will use commercially reasonable efforts to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long cause to occur as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) soon as possible without causing adverse tax consequences or (B2) Xxxxxxxx International LLC unless and to the Fair Market Value of all forms of extent that such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeproceeds are dividended, loaned or otherwise transferred to a Loan Party.

Appears in 1 contract

Samples: Possession Credit Agreement (Toys R Us Inc)

Asset Sales. (a) The Company will Holding shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) Holding (or the Company or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date or Equity Interests issued or sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company therefor received by Holding or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, cash or Cash Equivalents, Liquid Securities, Exchanged Properties ; provided that the amount of (including pursuant to Asset Swapsx) any liabilities (as shown on Holding's or the assumption by the acquiring Person such Restricted Subsidiary's most recent balance sheet) of Indebtedness Holding or other liabilities of the Company or a any Restricted Subsidiary (other than contingent liabilities of the Company or a Restricted Subsidiary and liabilities that are by their terms subordinated to the NotesDebentures or any Guarantee thereof) as that are assumed by the transferee of any such assets pursuant to a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company customary novation agreement that releases Holding or such Restricted Subsidiary harmless from further liability and against (y) any losssecurities, liability notes or cost in respect of other obligations received by Holding or any such assumed liabilities accompanied Restricted Subsidiary from such transferee that are converted by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company Holding or such Restricted Subsidiary into cash or Cash Equivalents within 180 days (to the extent of the cash received), shall be deemed to be cash for purposes of this provision; and provided further that the full 75% limitation referred to in clause (ii) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, Holding or any such Restricted Subsidiary may apply such Net Proceeds, at its option, (a) to repay or repurchase pari passu Indebtedness of Holding or any Indebtedness of any Restricted Subsidiary or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in a Permitted Business. Pending the final application of any such Net Proceeds, Holding may temporarily reduce the revolving Indebtedness under the Credit Agreement or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party Excess Proceeds exceeds $10.0 million, Holding will be required to make an offer to all Holders of Debentures (or its long term debt securitiesan "Asset Sale Offer") shall have to purchase the maximum principal amount of Debentures that may be purchased out of the Excess Proceeds, at an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, offer price in any case, that contemplates such indemnifying party (or its long term debt securities) failing cash in an amount equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets Accreted Value thereof on the date of repurchase (if such date of repurchase is prior to July 1, 2003) or 100% of the Company determined at principal amount thereof (if such date of repurchase is on or after July 1, 2003) plus, in each case, accrued and unpaid interest and Liquidated Damages thereon, if any, to the time such date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Debentures tendered pursuant to an Asset Sale Offer is madeless than the Excess Proceeds, Holding may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Debentures surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Debentures to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, Holding will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.

Appears in 1 contract

Samples: Execution (Aki Inc)

Asset Sales. (a) The No later than the first Business Day following the date of receipt by Company will not, and will not cause or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, (i) the Company so long as no Default or such Restricted SubsidiaryEvent of Default shall have occurred and be continuing, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) to the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $10,000,000 in the aggregate, Company shall have the option, directly or through one or more of its Subsidiaries, to invest or commit to invest Net Asset Sale Proceeds within one hundred eighty (A180) at least 75% days of receipt thereof in long-term productive assets of the consideration paid general type used in the business of Company and its Subsidiaries; provided further, pending any such investment all such Net Asset Sale Proceeds shall be applied to prepay Revolving Loans to the Company or such Restricted Subsidiary from such extent outstanding (without a reduction in Revolving Commitments); provided, further that, with respect to an Asset Sale and all other of any asset owned by a Foreign Subsidiary, any Net Asset Sales since Sale Proceeds in respect thereof which have not been reinvested or committed to be reinvested (the Issue Date"Unreinvested Net Asset Sale Proceeds") shall be applied (i) first, on a cumulative basis, is to the extent such Unreinvested Net Asset Sale Proceeds may be repatriated to the United States without in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities reasonable judgment of the Company or resulting in a Restricted Subsidiary (other than liabilities of the material tax liability to Company or a Restricted Subsidiary that are by their terms subordinated in relation to the Notesamount of proceeds to be repatriated, to prepay the Loans and/or permanently reduce the Revolving Commitments as set forth in Section 2.15(b), (ii) as a result second, to the extent of which the Company and the any remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu portion of such absence of liabilityUnreinvested Net Asset Sale Proceeds, to finance the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect general corporate purposes of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Foreign Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value aggregate of all forms of such consideration other than Permitted Consideration since amounts so applied by all Foreign Subsidiaries with respect to Asset Sales consummated after the Issue Closing Date does not exceed $5,000,000, and (iii) third, to the extent of any remaining portion of such Unreinvested Net Asset Sale Proceeds, to prepay the Loans and/or reduce the Revolving Commitments as set forth in the aggregate 5% Section 2.15(b). Concurrently with any determination by Company that any portion of any Unreinvested Net Asset Sale Proceeds of any Foreign Subsidiary will be applied as described in clause (ii) of the Adjusted Consolidated immediately preceding proviso, Company shall deliver to Agent an Officers' Certificate (w) certifying that such Unreinvested Net Tangible Assets Asset Sale Proceeds cannot be repatriated to the United States without resulting in a material tax liability to Company and the reasons therefore, (y) specifying the amount of Unreinvested Net Asset Sale Proceeds to be retained by such Foreign Subsidiary as described in said clause (ii) and the cumulative aggregate amount of all such Unreinvested Net Asset Sale Proceeds so retained by all Foreign Subsidiaries since the date of this Agreement and (z) demonstrating the derivation of the Company determined at the time such Unreinvested Net Asset Sale is madeProceeds of the correlative Asset Sale from the gross sales price thereof.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Amscan Holdings Inc)

Asset Sales. (a) The Company will notIn addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, and will not cause within five Business Days after each date upon which the Borrower or permit any Restricted Subsidiary toof its Subsidiaries receives any Net Asset Sale Proceeds, consummate an amount equal to 100% of such Net Asset Sale Proceeds shall be applied as a mandatory repayment of principal of outstanding Term Loans in accordance with the requirements of Sections 4.02(i); provided that the Net Asset Sale Proceeds received by the Borrower or any of its Subsidiaries in connection with any Asset Sale unless (including the proceeds of a Permitted Sale-Leaseback Transaction) shall not give rise to a mandatory repayment within five Business Days after the date of the receipt of such Net Asset Sale Proceeds so long as (i) no Default or Event of Default shall have occurred and be continuing on the date of receipt of such Net Asset Sale Proceeds, (ii) the aggregate amount of Net Asset Sale Proceeds not applied in any fiscal year of the Borrower pursuant to this proviso does not exceed (A) with respect to Net Asset Sale Proceeds in connection with the sale or issuance of equity interests in Subsidiaries to Hospital Investment Program Participants ("Syndication Proceeds"), $20,000,000, and (B) with respect to all other Net Asset Sale Proceeds (including Syndication Proceeds in excess of $20,000,000 in such fiscal year), $15,000,000, and (iii) the Borrower delivers an officer's certificate to the Administrative Agent within five Business Days after the date of receipt of such Net Asset Sale Proceeds stating that the conditions set forth in clauses (i) and (ii) are satisfied and that an amount equal to such Net Asset Sale Proceeds shall be used to purchase equipment or other assets useful in a Permitted Business (including capital stock of a Person engaged in such business) of the Borrower and its Subsidiaries (such assets being "Eligible Assets") within 365 days following the date of receipt of such Net Asset Sale Proceeds (which certificate shall set forth (or if not set forth in such certificate, in an additional certificate to be delivered within thirty days after the date of receipt of such Net Asset Sale Proceeds) the estimates of the proceeds to be so expended and such other information with respect to such reinvestment as the Administrative Agent may reasonably request); and provided further, that if all or any portion of such Net Asset Sale Proceeds referred to in preceding proviso are not so used within the 365 day period following the date of the respective receipt of such Net Asset Sale Proceeds, such remaining portion not so used shall be applied on such 365th day (or, if such date shall not be a Business Day, the immediately preceding Business Day) as a mandatory repayment of principal of outstanding Term Loans in accordance with the requirements of Section 4.02(i); provided that so long as no Material Default or Event of Default shall have occurred and be continuing, no mandatory repayment shall be required hereunder until the aggregate amount of Net Asset Sale Proceeds which have not previously been applied as a mandatory repayment equals at least $5,000,000. Notwithstanding the terms of clause (iii) in the preceding sentence, the parties hereto agree that with respect to the sale of stock of Rocky Mountain (or the sale of assets of Rocky Mountain), (i) the Company first $10 million of Net Asset Sale Proceeds received by the Borrower or any of its Subsidiaries in connection with such Restricted Subsidiarysale shall be subject to the reinvestment provisions described in clause (iii) of the preceding sentence and (ii) any Net Asset Sale Proceeds in excess of $10 million received by the Borrower or any of its Subsidiaries in connection with such sale shall be immediately used by the Borrower to prepay the Term Loans in accordance with the requirements of Section 4.02(i). If the Borrower is required to apply any portion of asset sale proceeds to prepay or offer to prepay Indebtedness evidenced by the Senior Subordinated Notes or Permitted Subordinated Refinancing Indebtedness (under the terms of the Senior Subordinated Notes Indenture or the documentation relating thereto, as the case may be), receives consideration at the time of such Asset Sale at least equal then notwithstanding anything contained in this Agreement to the Fair Market Value contrary the Borrower shall apply such asset sale proceeds as a mandatory prepayment of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% principal of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is outstanding Term Loans in the form accordance with requirements of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 4.02(i).

Appears in 1 contract

Samples: Credit Agreement (Iasis Healthcare Corp)

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale, unless, after giving effect to such proposed Asset Sale, the aggregate value of all assets of the Company and its Subsidiaries (valued at the greater of net book value or fair value) that were the subject of an Asset Sale unless during the period (a) commencing on the First Amendment Effective Date and ending on the date of such proposed Asset Sale does not exceed 30% of Consolidated Total Assets and (b) commencing on the first day of the then current Fiscal Year of the Company and ending on the date of such proposed Asset Sale does not exceed 5% of Consolidated Total Assets (Consolidated Total Assets in each case to be determined as at the last day of the then most recently ended Fiscal Year of the Company preceding such Asset Sale); provided, however, that for purposes of the foregoing calculations in clauses (a) and (b) above, there shall not be included the value of any assets which were the subject of an Asset Sale if the Net Proceeds from such Asset Sale are applied by the Company within 360 days after the receipt of such Net Proceeds either (i) to make an investment in Additional Assets having a fair market value (as determined in good faith by the Company or such Restricted Subsidiary, as Board of Directors of the case may be, receives consideration at the time of such Asset Sale Company) at least equal to the Fair Market Value that of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and so disposed of, or (ii) (A) at least 75% to the repayment or prepayment of unsubordinated Indebtedness of the consideration paid Company (other than (x) Indebtedness owing by the Company to any of its Subsidiaries or any Affiliate and (y) Indebtedness in respect of any revolving credit or similar facility providing the Company or any such Restricted Subsidiary from such Asset Sale and all other Asset Sales since with the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant right to Asset Swaps) or the assumption by the acquiring Person of Indebtedness obtain loans or other liabilities extensions of credit from time to time, unless in connection with such payment of Indebtedness, the availability of credit under such credit facility is permanently reduced by an amount not less than the amount of such proceeds applied to the payment of such Indebtedness), so long as the Company or offers to prepay each Note in accordance with Section 8.8 (an “Excess Proceeds Offer”), in a Restricted Subsidiary (other than liabilities of principal amount equal to, but not less than, the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu Ratable Portion of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost Note in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted ConsiderationAsset Sale.) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.

Appears in 1 contract

Samples: Guaranty Agreement (Tampa Electric Co)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, consummate any an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an officers' certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of. In the event that the Company consummates an Asset Sale involving all or substantially all of the assets of the Company and property subject its Subsidiaries (a "Company Sale"), within 30 days after the receipt of the proceeds of such Asset Sale, the Company shall make an offer (pro rata in proportion to the principal amount (or accreted value, if applicable) outstanding in respect of any assets sale offer required by the terms of any pari passu Indebtedness incurred in accordance with the Indenture) to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the proceeds of such Asset Sale, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth herein. To the extent that any proceeds remain after consummation of an Asset Sale Offer, the Company may use such proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer surrendered by Holders thereof (such Fair Market Value to be determined on and any pari passu Indebtedness, as aforesaid) exceeds the date amount of contractually agreeing to effect the proceeds of such Asset Sale) and (ii) (A) at least 75% of , the consideration paid Trustee shall select the Notes to be purchased on a pro rata basis. Notwithstanding anything to the contrary provided herein, in the event of an Asset Sale that is not a Company or such Restricted Subsidiary Sale, the Company may use the proceeds from such sale to (a) make an Asset Sale and all other Asset Sales since the Issue DateOffer, on a cumulative basis, is (b) repurchase Notes in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties open market transactions and/or (including pursuant to Asset Swapsc) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or invest in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeBusinesses.

Appears in 1 contract

Samples: Newcor Inc

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, consummate any engage in an Asset Sale unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board set forth in an Officers' Certificate delivered to the Trustee, PROVIDED that such Officer's Certificate shall be delivered only in the event of any Asset Sale involving $5.0 million or more of consideration) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date or Capital Stock issued, or sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 7580% of the consideration paid to therefor received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, cash or Cash Equivalents, Liquid Securities, Exchanged Properties ; PROVIDED that the amount of (including pursuant to Asset Swapsx) any liabilities (as shown on the Company's or the assumption by the acquiring Person of Indebtedness or other liabilities such Subsidiary's most recent balance sheet) of the Company or a Restricted Subsidiary any of its Subsidiaries (other than contingent liabilities of the Company or a Restricted Subsidiary and liabilities that are by their terms subordinated to the NotesNotes or any Guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability, and (y) any notes or other obligations received by the Company or any such Subsidiary from such transferee that are immediately converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision, and PROVIDED, FURTHER, that (A) the Company and its Subsidiaries will not be required to comply with clauses (i) and (ii) of this paragraph in connection with any Asset Sale effected in order to comply with an FTC Order which is consummated within the lesser of (a) 365 days of the date of such FTC Order, or (b) the time period specified in such FTC Order and (B) any Acquisition Subsidiary and any Subsidiary of an Acquisition Subsidiary will not be required to comply with clause (ii) of this paragraph in connection with any Asset Sale. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Subsidiary may apply such Net Proceeds, at its option, (a) to permanently reduce outstanding Senior Indebtedness (and correspondingly reduce commitments with respect thereto) or (b) to the acquisition of an interest in another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in a Permitted Line of Business. Pending the final application of any such Net Proceeds, the Company or the applicable Subsidiary may temporarily reduce Indebtedness under the Revolving Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "EXCESS PROCEEDS." Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company shall make an offer to all Holders of Notes (an "ASSET SALE OFFER") to purchase an aggregate principal amount of Notes equal to such Excess Proceeds, at a Purchase Price in cash in an amount equal to 100% of the principal amount thereof, PLUS accrued and unpaid interest and Liquidated Damages, if any, thereon to the Purchase Date. The Asset Sale Offer shall be made in compliance with all applicable laws, including, without limitation, Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of which the Company an Asset Sale, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or applicable procedures set forth in lieu Article III hereof and shall include all instructions and materials necessary to enable Holders to tender their Notes. To the extent that the aggregate amount of such absence of liabilityNotes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted the applicable Subsidiary harmless from and against may use any loss, liability or cost in respect of such assumed liabilities accompanied by remaining Excess Proceeds for general corporate purposes. If the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full aggregate principal amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (Notes surrendered by Holders thereof exceeds the Offer Amount, the Trustee shall select the particular Notes or its long term debt securities) shall have an Investment Grade Rating (portions thereof to be purchased in accordance with no indication Article III hereof. Upon completion of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeOffer, the amount of Excess Proceeds shall be reset at zero.

Appears in 1 contract

Samples: Indenture (Commemorative Brands Inc)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary to, Subsidiaries to consummate any an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and or Equity Interests issued or sold or otherwise disposed of; (ii) the fair market value is determined by (Aa) an executive officer of the Company if the value is less than $10.0 million and evidenced by an officer's certificate delivered to the Trustee or (b) the Company's Board of Directors if the value is $10.0 million or more and evidenced by a resolution of such Board of Directors delivered to the Trustee; and (iii) at least 75% of the consideration paid received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents or any combination thereof. For purposes of this Section 4.10 each of the following shall be deemed to be cash: (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary transferee that are converted by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability into cash or cost in respect Cash Equivalents within 180 days following the closing of such assumed liabilities accompanied by Asset Sale, to the posting extent of a letter the cash or Cash Equivalents received in that conversion. Within 365 days after the receipt of credit any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds at its option (issued by a commercial bank that has an Investment Grade Ratingi) in favor to repay, repurchase, redeem, defease or otherwise acquire or retire Senior Debt of the Company or any Indebtedness of a Restricted Subsidiary; (ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business; (iii) to make a capital expenditure in a Permitted Business; or (iv) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Restricted Subsidiary for Net Proceeds, the full Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will be required to make an offer (an "Asset Sale Offer") to all Holders and to the extent required, to all holders of other Indebtedness of the Company that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes (in integral multiples of $1,000) and such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication other pari passu Indebtedness of a negative outlook or credit watch with negative implications, the Company that may be purchased out of the Excess Proceeds. The offer price in any case, that contemplates such indemnifying party (or its long term debt securities) failing Asset Sale Offer will be equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount of Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company determined at may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the time aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale is madeOffer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of such conflict.

Appears in 1 contract

Samples: Parker Drilling Co /De/

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate make any Asset Sale unless Disposition, except (i) the Asset Dispositions described on Schedule 11.6 hereof, (ii) additional Asset Dispositions of the Company and its Subsidiaries (other than BST and its Subsidiaries) in an aggregate amount (excluding the amount of any Asset Dispositions described on Schedule 11.6) based on Fair Market Value not to exceed: (a) with respect to the period from the Closing Date through December 31, 2007, $6,420,000, or (b) during any fiscal year thereafter, $11,000,000, and with respect to which, subject to the mandatory prepayment provisions set forth in Section 9.3, the Company or such Restricted SubsidiarySubsidiary intends to apply the Net Proceeds Amount arising from any such Transfer under clauses (a) or (b) hereof to a Debt Prepayment Application or to reinvestments in the Company or such Subsidiary (in the form of capital expenditures or otherwise) within 365 days after such Transfer, as and the case may beCompany or such Subsidiary applies such Net Proceeds Amount within such period, receives consideration at (iii) Asset Dispositions constituting part of the time ASCI Reorganization, and (iv) Asset Dispositions of such Asset Sale at least equal to the BST and its Subsidiaries in an aggregate amount based on Fair Market Value not to exceed €4,000,000 per fiscal year of BST. Notwithstanding the assets foregoing, the Company will not, and property subject will not permit any Subsidiary to, make any Asset Disposition to any Project Subsidiary (other than any Asset Disposition consisting of an equity Investment in, or loan constituting WLR Subordinated Indebtedness to, any such Asset Sale Project Subsidiary, by (such Fair Market Value to be determined i) WLR or any WLR Affiliate or (ii) the Company with the proceeds of an equity Investment in, or loan constituting WLR Subordinated Indebtedness to, the Company by WLR or any WLR Affiliate) if, on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Dateproposed Transfer, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost default then exists in respect of any Indebtedness owing by such assumed liabilities accompanied by Project Subsidiary. Notwithstanding anything to the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of contrary herein, the Company will not make any Asset Disposition or such Restricted Subsidiary for the full amount Transfer of such liabilities and for so long any Pledged Collateral (as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed defined in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madePledge Agreement).

Appears in 1 contract

Samples: Note Purchase Agreement (International Textile Group Inc)

Asset Sales. Not later than five (5) Business Days following the receipt by the Initial Borrower or any Restricted Subsidiary of any Net Asset Sale Proceeds in excess of $10,000,000 in the aggregate during any twelve-month period, the Borrower Representative shall prepay the Term Loans, subject to Sections 2.13(g) and 2.14(b) in an aggregate amount equal to one hundred percent (100%) of such Net Asset Sale Proceeds in excess of $10,000,000; provided that, so long as no Event of Default shall have occurred and be continuing or would immediately arise therefrom, such proceeds with respect to any such Asset Sale shall not be required to be so applied in accordance with this clause (a) The Company will not, and will not cause to the extent that the Borrower Representative shall have notified Administrative Agent on or permit any Restricted Subsidiary to, consummate any prior to the end of the five-Business-Day period noted above stating that such Net Asset Sale unless Proceeds are expected to be reinvested in assets (iother than working capital, except for short term capital assets) used or useful in the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value business of the assets Initial Borrower and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such its Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties Subsidiaries (including pursuant to Asset Swapsa Permitted Acquisition) or to be contractually committed to be so reinvested (such amounts “Asset Sale Reinvestment Amounts”), within twelve (12) months following receipt of such Net Asset Sale Proceeds; provided that such Asset Sale Reinvestment Amounts that have been contractually committed to be reinvested during such twelve (12) month period shall be reinvested within 180 days after the assumption expiration of such twelve (12) month period); provided, however, that if at the time that any such prepayment would be required, the Borrowers (or any Restricted Subsidiary of the Borrowers) are required to prepay or offer to repurchase any Incremental Equivalent Debt, any Credit Agreement Refinancing Indebtedness or any other Indebtedness permitted hereunder, in each case, that is secured by the acquiring Person Collateral on a pari passu basis and that is pari passu in right of payment, with the Obligations under Initial Term Loans and Revolving Loans, pursuant to the terms of the documentation governing such Indebtedness (such Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or other liabilities Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of such Net Asset Sale Proceeds, then the Borrower Representative may apply such portion of the Company or Net Asset Sale Proceeds on a Restricted Subsidiary pro rata basis (other than liabilities determined on the basis of the Company or a Restricted Subsidiary aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that are by their terms subordinated the portion of such Net Asset Sale Proceeds allocated to the Notes) as a result Other Applicable Indebtedness shall not exceed the amount of which such Net Asset Sale Proceeds required to be allocated to the Company Other Applicable Indebtedness pursuant to the terms thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Asset Sale Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of liabilitythe Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.13(a) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchase or prepaid, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within ten (10) Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank Term Loans in accordance with the terms hereof. In the event that has an Investment Grade Rating) in favor any portion of the Company or Asset Sale Reinvestment Amounts are neither reinvested nor contractually committed to be so reinvested within such Restricted Subsidiary for twelve (12) month period (and actually reinvested within 180 days after the full amount expiration of such liabilities and for so long twelve (12) month period), such unused portion shall be applied within ten (10) Business Days after the last day of such period as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, mandatory prepayment as provided in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered intothis Section 2.13(a) (“Permitted Consideration”without giving effect to the first proviso in this clause (a) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeabove).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)

Asset Sales. No later than five (a5) The Company will not, and will not cause Business Days following the date of receipt by Parent Borrower or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, Parent Borrower shall prepay the Term Loans in an aggregate amount equal to such Net Asset Sale Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, Parent Borrower shall have the option, directly or through one or more Subsidiaries, to invest such Net Asset Sale Proceeds (ithe “Asset Sale Reinvestment Amounts”) in long-term productive assets (excluding capital expenditures) of the Company general type used in the existing lines of business of Parent Borrower if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Restricted SubsidiaryNet Asset Sale Proceeds; provided further that to the extent such Net Asset Sale Proceeds result from Collateral, as the case may beParent Borrower will reinvest such Net Asset Sale Proceeds in Collateral; provided further, receives consideration at the time of pending any such reinvestment such Asset Sale Reinvestment Amounts shall be held at least equal all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent. In the event that the Asset Sale Reinvestment Amounts are not reinvested prior to the Fair Market Value last day of the assets and property subject to such one hundred eighty (180) day period, Administrative Agent shall apply such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid Reinvestment Amounts to the Company or Obligations as set forth in Section 2.12(b); provided, that, notwithstanding the foregoing, in no event shall Parent Borrower be entitled to invest any such Restricted Subsidiary from such Net Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form Proceeds of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including any Specified Divestiture pursuant to Asset Swapsthis Section 2.11(a) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liabilityand, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount avoidance of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with doubt, no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeProceeds of any Specified Divestiture shall constitute Asset Sale Reinvestment Amounts.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (AMC Networks Inc.)

Asset Sales. (a) The Company will not, Each of Borrower and will the Guarantors hereby agree that Borrower and the Guarantors shall not cause or permit any Restricted Subsidiary toof its Subsidiaries, until satisfaction in full of the Obligations and termination of this Agreement, to consummate any an Asset Sale unless (ix) with respect to Asset Sales by any Guarantor an amount equal to the Company Net Cash Proceeds therefrom is (A) applied to repay the Obligations in such order as Lender may determine, (B) used to make cash payments in the ordinary course of business and consistent with past practices that are not otherwise prohibited by this Agreement, provided, however, that the aggregate amount so used pursuant to this clause (B) from and after the Effective Date does not exceed $2 million (without duplication of amounts used for Capital Expenditures in accordance with clause (C) of this Section 6.2 below), or such Restricted Subsidiary, as (C) used for Capital Expenditures in a Related Business within 180 days after the case may be, receives consideration at the time date of such Asset Sale at least or used to reimburse Borrower and its Subsidiaries for Capital Expenditures made prior to such Asset Sale, or (y) with respect to proposed Asset Sales by Borrower resulting in Net Cash Proceeds which, when aggregated with the Net Cash Proceeds of all other Asset Sales in the same fiscal year (other than Asset Sales to which Lender has consented hereunder) exceeds $3 million in such fiscal year, such Asset Sale shall not be consummated unless Lender shall have given its prior written consent and Borrower shall deposit with Lender an amount equal to the Fair Market Value amount of such Net Cash Proceeds in excess of $1,000,000, to be held as cash collateral for the assets and property subject Obligations. Absent the existence of an Event of Default, Lender shall release such cash collateral in an amount (i) which Borrower certifies to Lender was previously expended by Borrower for Capital Expenditures by Borrower prior to such Asset Sale and such expended amount has not been previously reimbursed to Borrower, or (such Fair Market Value to be determined on ii) which represents the imminent expenditure of funds by Borrower for Capital Expenditures in a Related Business within 180 days after the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since upon the Issue Date, on a cumulative basis, is in the form receipt by Lender of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant proof reasonably satisfactory to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu Lender of such absence imminent expenditure of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madefunds.

Appears in 1 contract

Samples: American Real Estate Partners L P

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Asset Sales. (a) The Company will may not, and will may not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate directly or indirectly, make any Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such sold or otherwise disposed of. Within 12 months after any Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may at its option (a) and reinvest an amount equal to the Net Cash Proceeds (iior any portion thereof) from such disposition in Replacement Assets and/or (Ab) at least 75% apply an amount equal to the Net Cash Proceeds (or any remaining portion thereof) to the permanent reduction of pari passu Debt of the consideration paid to Company. For purposes of clause (a) above, if the Company or the Restricted Subsidiary, as the case may be, within such 12-month period, enters into a binding contract for the construction of a Stopping Center, the Company or such Restricted Subsidiary shall be deemed to have reinvested an amount equal to the construction cost of such Stopping Center in Replacement Assets (without regard to the timing of actual payment therefor) until the earlier of (I) the date of actual completion and (II) the scheduled completion date provided in such construction contract, as adjusted to give effect to delays not exceeding in the aggregate 100% of the number of days between the date of the construction contract and such scheduled completion date, at which time the actual reinvestment in Replacement Assets will be determined. Any Net Cash Proceeds from such any Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is that are not used to reinvest in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities Replacement Assets and/or repay pari passu Debt of the Company or constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Issuers shall make an offer to Purchase on a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated pro rata basis, from all Holders, Securities in an aggregate principal amount equal to the Notes) as Excess Proceeds, at a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or Purchase Price in lieu of such absence of liability, the acquiring Person or its parent company agrees cash equal to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof, together with accrued interest, if any, on such principal amount to the Purchase Date. To the extent that any amount of Excess Proceeds remains after completion of such offer to Purchase, the Company determined at may use such remaining amount for general corporate purposes, and the time such Asset Sale is madeamount of Excess Proceeds shall be reset to zero.

Appears in 1 contract

Samples: Supplemental Indenture (Petro Holdings Financial Corp)

Asset Sales. No later than the first Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds shall be deposited into a Controlled Account on the same Business Day as receipt thereof), Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) The Company will notin an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) so long as no Event of Default shall have occurred and be continuing, and will not cause or permit any Restricted Subsidiary to, consummate any (ii) to the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $1,500,000 in any twelve consecutive month period, upon delivery of a written notice to Administrative Agent, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within two hundred seventy (270) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $1,500,000 or more in any twelve consecutive month period has been consented to by Administrative Agent and Required Lenders); provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall, if requested by Administrative Agent, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent. Notwithstanding the foregoing, with respect to the Las Vegas Termination Payments, the Company shall be required to prepay the Obligations by an amount equal to the Las Vegas Excess Termination Payments in accordance with Section 2.14(b) (in lieu of reinvestment), unless the Company has notified the Administrative Agent, in writing and prior to 30 days after receipt by Holdings or its Subsidiaries of any Las Vegas Termination Payments, of the specific investment into which such Las Vegas Excess Termination Payments shall be re-invested, in which case, the Las Vegas Excess Termination Payments may be reinvested in accordance with this Section 2.13(a) in such designated specific investment (or applied to prepay the Obligations in accordance with this Section 2.13(a)). In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earlier of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time last day of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale two hundred seventy (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale270) day period, and (ii) (A) at least 75% the date of the consideration paid to the Company or such Restricted Subsidiary from occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Reinvestment Amounts to the Notes) Obligations as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or set forth in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.Section 2.14(b). 70

Appears in 1 contract

Samples: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)

Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, consummate any Exercise of Asset Sale unless Rights. So long as no Notes or New Notes are Outstanding the Garnet Preferred Member may, at any time (x) following the occurrence of a Shareholder Trigger Event or a Specified Equity Event or (y) during an Extension Period, elect to cause (i) the Company sale of or realization upon one or more assets of Garnet, Amethyst and/or the Garnet Project Companies and/or (ii) the Distribution of Cash and/or proceeds of such Restricted Subsidiaryasset sales pursuant to Section 5.1(a) or 5.1(b) (as applicable) by delivering to the Managing Member (and, if the Garnet Common Member is not the Managing Member, the Garnet Common Member) an Asset Sale Notice and such Asset Sale Notice shall become effective to permit the sale of the assets specified therein on the 10th Business Day following delivery of such Asset Sale Notice; provided, however, that the Garnet Preferred Member may rescind such Asset Sale Notice by delivering to the Managing Member (and, if the Garnet Common Member is not the Managing Member, the Garnet Common Member) written notice of such rescission; and provided, further, that if an Irrevocable Election has been made by the Garnet Common Member and a Purchase Option Notice or a Retirement Notice has been delivered pursuant to the Diamond LLC Agreement or the Topaz LLC Agreement on or prior to such 10th Business Day, no Asset Sale Notice shall become effective to permit the sale of the assets specified therein until the day after the Purchase Date or Retirement Date, as the case may be, receives consideration at specified in such notice (and then if, but only if, such purchase or retirement is not consummated). Any such rescission shall not affect the time of such Garnet Preferred Member's right to deliver any subsequent Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeNotice.

Appears in 1 contract

Samples: Limited Liability Company Agreement (El Paso Corp/De)

Asset Sales. No later than the first Business Day following the date of receipt by any Note Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds, if received on or after the Initial Note Date, shall be deposited into a Controlled Account on the same Business Day as receipt thereof), the Remaining Amount shall be reduced in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) The Company will notso long as no Default or Event of Default shall have occurred and be continuing, and will not cause or permit any Restricted Subsidiary to, consummate any (ii) to the extent that aggregate Net Asset Sale unless Proceeds from the Closing Date through the applicable date of determination do not exceed $500,000, upon delivery of a written notice to the Purchasers, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $500,000 or more has been consented to by the Requisite Purchasers) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Sale Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, if requested by the Requisite Purchasers, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to the Requisite Purchasers. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earliest of (i) the Company or last day of such Restricted Subsidiaryone hundred twenty (120) day period (if, as with respect to a Permitted Acquisition, a definitive purchase agreement therefor has not been executed in accordance with the case may beother provisions of this Agreement), receives consideration at (ii) the time last day of such one hundred eighty (180) day period (if, with respect to a Permitted Acquisition, a definitive purchase agreement therefor has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, such Asset Sale at least equal Reinvestment Amounts shall be applied to the Fair Market Value Obligations as set forth in Section 2.14(b). For the avoidance of doubt, if any Net Asset Sale Proceeds are received by any Note Party or any of its Subsidiaries prior to the payment in full and discharge of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary Xxxxxxx NPA Obligations (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of any contingent indemnification amounts for which no claim has been made), such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Net Asset Sale Proceeds shall be applied as set forth in favor Section 2.13 of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeXxxxxxx NPA.

Appears in 1 contract

Samples: Master Note Purchase Agreement (Ontrak, Inc.)

Asset Sales. (a) The Company will Issuers shall not, and will shall not cause or permit any Restricted Subsidiary of their respective Subsidiaries to, consummate engage in any Asset Sale Sale, unless (ix) the Company Issuers or such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (Ay) at least 75% of the consideration paid to therefor received by the Company Issuers or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash; PROVIDED, Cash EquivalentsHOWEVER, Liquid Securities, Exchanged Properties that the amount of (including pursuant to Asset SwapsA) any liabilities (as shown on the Issuers' or such Subsidiary's most recent balance sheet or in the assumption by the acquiring Person of Indebtedness or other liabilities notes thereto) of the Company Issuers or a Restricted Subsidiary any of their respective Subsidiaries (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the NotesNotes or any guarantee thereof) as a result of which the Company and the remaining Restricted Subsidiaries that are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting transferee of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or any such Restricted Subsidiary for the full amount of such liabilities assets and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) Permitted Asset Sale Consideration received by the Fair Market Value Issuers or such Subsidiary in any such Asset Sale shall be deemed to be cash for purposes of all forms this provision. The Issuers may (a) apply the Net Proceeds from such Asset Sale to permanently reduce Senior Debt of the Issuers; PROVIDED that the Issuers make such consideration other than Permitted Consideration since a reduction within 365 days after any Asset Sale or (b) invest the Issue Date does not exceed Net Proceeds from such Asset Sale in the same or a similar line of business as Consoltex Group was engaged in on the date of this Indenture or in businesses reasonably related thereto: PROVIDED that the Issuers shall have invested such Net Proceeds within 365 days after such Asset Sale or shall have commenced and not completed or abandoned the project in which the Board of Directors of Consoltex Group has determined that the Issuers will invest such Net Proceeds and shall have segregated such Net Proceeds from the general funds of the Issuers and their Subsidiaries for that purpose; PROVIDED, FURTHER, that if the project in which such Board of Directors has determined that the Issuers will invest such Net Proceeds is thereafter abandoned, within 60 days after such project is abandoned, the Issuers shall (i) apply the Net Proceeds from such Asset Sale to permanently reduce Senior Debt of the Issuers or (ii) invest the Net Proceeds from such Asset Sale in the same or a similar line of business as Consoltex Group was engaged in on the date of this Indenture or in businesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Issuers may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from the Asset Sale that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate 5amount of Excess Proceeds exceeds $10 million, the Issuers shall make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer (the "Offered Price"), in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (a "Deficiency"), the Issuers may use such Deficiency for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero; PROVIDED that the amount of 25 % Excess Proceeds shall constitute Excess Proceeds for purposes of the Company determined first offer that is made after the fifth anniversary of the original issuance of the Notes (the "Fifth Anniversary"). Notwithstanding the foregoing, in no event shall the Issuers use Excess Proceeds to purchase more than 25 % of the original aggregate principal amount of Notes on or prior to the Fifth Anniversary. If the aggregate Excess Proceeds (disregarding any resetting to zero as described above) resulting from Asset Sales occurring prior to the Fifth Anniversary, less any Deficiencies resulting from any offers made on or prior to such date, exceed 25 % of the original aggregate principal amount of the Notes (such excess being the "25 % Excess Proceeds"), then the Issuers shall make an offer at the Offered Price in accordance with the foregoing provisions (i) promptly after the Fifth Anniversary, in the event the amount of the 25% Excess Proceeds exceeds $10 million or (ii) at such time such Asset Sale as the amount of the 25% Excess Proceeds together with the Excess Proceeds received after the Fifth Anniversary exceeds $10 million, in the event the amount of the 25% Excess Proceeds is madeless than $10 million.

Appears in 1 contract

Samples: Indenture (Consoltex Inc/ Ca)

Asset Sales. (a) The Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company will not, and will not cause or permit any Restricted Subsidiary toof the Company, consummate as applicable, may apply such Net Proceeds at its option: to repay (A) Indebtedness secured by assets of the Company or its Restricted Subsidiaries (to the extent of the value of the assets securing such Indebtedness), (B) Obligations under the Credit Agreement or (C) Indebtedness of a Restricted Subsidiary of the Company that is not a Guarantor (to the extent of the value of the assets of such Restricted Subsidiary); or to purchase Replacement Assets. Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. On the 366th day after an Asset Sale or such earlier date, if any, as the Company determines not to apply the Net Proceeds relating to such Asset Sale as set forth in Section 4.10(b) (each such date being referred as an “Excess Proceeds Trigger Date”), such aggregate amount of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as permitted pursuant to Section 4.10(b) (“Excess Proceeds”) shall be applied by the Company to make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale unless Offer shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess Proceeds equal to or in excess of $30.0 million resulting from one or more Asset Sales, at which time the entire unutilized amount of Excess Proceeds (inot only the amount in excess of $30.0 million) shall be applied as provided in Section 4.10(c) of the Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or and its Restricted Subsidiaries may use such Restricted Subsidiary, as Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the case may be, receives consideration at the time aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale at least equal to Offer exceeds the Fair Market Value amount of Excess Proceeds, the assets Notes and property such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the Excess Proceeds subject to such Asset Sale (such Fair Market Value shall no longer be deemed to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeExcess Proceeds.

Appears in 1 contract

Samples: Windstream Corp

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, consummate any an Asset Sale or issue Equity Interests in any of its Subsidiaries or sell Equity Interests in any of its Subsidiaries, unless (i) the Company (or such Restricted the Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by Board Resolution delivered to the Trustee) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date or Equity Interests issued or sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 7580% of the consideration paid to therefor received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet), Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted any Subsidiary (other than contingent liabilities of the Company or a Restricted Subsidiary and liabilities that are by their terms subordinated to the NotesSenior Subordinated Notes or any guarantee thereof) as a result that are assumed by the transferee of which the Company and the remaining Restricted Subsidiaries are no longer liable for any such liabilities (or in lieu of assets such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold that the Company or such Restricted Subsidiary harmless from have no further liability and against (y) any losssecurities, liability notes or cost in respect of such assumed liabilities accompanied other obligations received by the posting of a letter of credit (issued Company or any such Subsidiary from such transferee that are within 3 Business Days converted by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 180 days after the full receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to repay Indebtedness under the Senior Credit Facility or Senior Debt (and to correspondingly permanently reduce commitments with respect thereto), or (b) to the acquisition of a controlling interest in another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving Indebtedness under the Senior Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party Excess Proceeds exceeds $5.0 million (or its long term debt securities) an "Excess Proceeds Offer Triggering Event"), the Company shall have be required to make an Investment Grade Rating (with no indication Exceed Proceeds Offer to all Holders of a negative outlook or credit watch with negative implicationsSenior Subordinated Notes to purchase the maximum principal amount of Senior Subordinated Notes that may be purchased out of the Excess Proceeds, at an offer price in any case, that contemplates such indemnifying party (or its long term debt securities) failing cash in an amount equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Senior Subordinated Notes tendered pursuant to an Excess Proceeds Offer is less than the Excess Proceeds, the Company determined may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Subordinated Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Company shall select the Senior Subordinated Notes to be purchased pursuant to Section 3.09 hereof. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at the time such Asset Sale is madezero.

Appears in 1 contract

Samples: Key Plastics Inc

Asset Sales. (a) The Company will not, and will not cause No later than the third Business Day following the date of receipt by the Borrower or permit any Restricted Subsidiary to, consummate of any Net Proceeds in respect of any Asset Sale, the Borrower shall prepay the Term Borrowings in an aggregate amount equal to such Net Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, if such Asset Sale unless relates to assets that were acquired by the Borrower or any Subsidiary after the Closing Date in a transaction permitted under Section 6.6(a)(x), 6.6(a)(xviii) or 6.6(a)(xix) (ior prior to the Closing Date in a transaction permitted under the comparable provisions of the Existing Credit Agreement and set forth on Schedule 1.1 hereto), in each case, in whole or in part, with the Concurrent Equity Proceeds in respect thereof or with Equity Interests (other than Disqualified Equity Interests) in the Company Borrower (or any Borrower Parent Company) (such Restricted Subsidiary, acquisition consideration being referred to as the “Equity Consideration” and such assets being referred to as the “Equity Financed Assets”), the Borrower may, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of the Borrower executed by an Authorized Officer to the effect that such Asset Sale relates to Equity Financed Assets (and containing a brief description of such Equity Financed Assets, the date of the acquisition thereof, the acquisition consideration paid therefor (specifying the nature thereof, it being understood that in the case may beof Equity Financed Assets acquired as part of an acquisition the consideration for which did not consist solely of the Equity Consideration, receives the portion of such acquisition consideration at in the time form of Equity Consideration attributable to such Equity Financed Assets shall be determined on a proportionate basis to the other types of consideration paid in such acquisition) and the fair value of the Equity Consideration paid (or so attributed to have been paid) therefor, determined as of the date of the acquisition thereof (such fair value being referred to as the “Equity Consideration Value”), setting forth the portion of the Net Proceeds in respect of such Asset Sale at least equal to the Fair Market Value of the assets and property subject that is attributable to such Asset Sale (such Fair Market Value to be determined on Equity Financed Assets and certifying that, as of the date of contractually agreeing such certificate, no Default or Event of Default has occurred and is continuing, in which case such portion of such Net Proceeds, to the extent not in excess of such Equity Consideration Value, shall not be deemed to be Net Proceeds for purposes of this Section 2.13(a); provided further that, so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may, on or prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of the Borrower executed by an Authorized Officer to the effect that the Borrower (a) intends to cause such Asset SaleNet Proceeds (or a portion thereof specified in such certificate) to be reinvested in long-term assets (including capital expenditures) useful in the business of the Borrower and the Subsidiaries within 365 days after the receipt of such Net Proceeds or (b) intends to enter into a binding commitment within 365 days after the receipt of such Net Proceeds to cause such Net Proceeds (or a portion thereof specified in such certificate) to be reinvested in long-term assets (including capital expenditures) useful in the business of the Borrower and the Subsidiaries within 180 days after the end of such 365 day period, and, in each case, certifying that, as of the date thereof, no Default or Event of Default has occurred and is continuing, in which case the Borrower may so reinvest such Net Proceeds within such applicable period; provided that (i) to the extent any such Net Proceeds shall be received in respect of assets owned by a Credit Party, such Net Proceeds may be reinvested only in assets owned by a Credit Party (other than, in each case, Equity Interests in Foreign Subsidiaries, except to the extent such Net Proceeds shall have resulted from the sale of Equity Interests in one or more Foreign Subsidiaries) and (ii) (A) at least 75% of the consideration paid to the Company or any such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption Net Proceeds that are not so reinvested by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu end of such absence of liability, period shall be applied to prepay the acquiring Person or its parent company agrees to indemnify and hold Term Borrowings promptly upon the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect expiration of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeperiod.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (AutoTrader Group, Inc.)

Asset Sales. No later than the first Business Day following the date of receipt by any Note Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds, if received on or after the Initial Note Date, shall be deposited into a Controlled Account on the same Business Day as receipt thereof), the Remaining Amount shall be reduced in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) The Company will notso long as no Default or Event of Default shall have occurred and be continuing, and will not cause or permit any Restricted Subsidiary to, consummate any (ii) to the extent that aggregate Net Asset Sale unless Proceeds from the Closing Date through the applicable date of determination do not exceed $500,000, upon delivery of a written notice to the Purchasers, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $500,000 or more has been consented to by the Requisite Purchasers) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Sale Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, if requested by the Requisite Purchasers, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to the Requisite Purchasers. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earliest of (i) the Company or last day of such Restricted Subsidiaryone hundred twenty (120) day period (if, as with respect to a Permitted Acquisition, a definitive purchase agreement therefor has not been executed in accordance with the case may beother provisions of this Agreement), receives consideration at (ii) the time last day of such one hundred eighty (180) day period (if, with respect to a Permitted Acquisition, a definitive purchase agreement therefor has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, such Asset Sale at least equal Reinvestment Amounts shall be applied to the Fair Market Value Obligations as set forth in Section 2.14(b). For the avoidance of doubt, if any Net Asset Sale Proceeds are received by any Note Party or any of its Subsidiaries prior to the payment in full and discharge of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary Gxxxxxx NPA Obligations (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of any contingent indemnification amounts for which no claim has been made), such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Net Asset Sale Proceeds shall be applied as set forth in favor Section 2.13 of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeGxxxxxx NPA.

Appears in 1 contract

Samples: Master Note Purchase Agreement (Acuitas Group Holdings, LLC)

Asset Sales. (a) The Company will not, and will not cause No later than the third Business Day following the date of receipt by Borrower or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, Borrower shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.16(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided that (i) so long as no Default or Event of Default shall have occurred and be continuing, (ii) to the Company extent that the amount of such Net Asset Sale Proceeds is not greater than $75,000,000 and (iii) to the extent that aggregate Net Asset Sale Proceeds from the Effective Date through the applicable date of determination do not exceed the lesser of (x) $250,000,000 and (y) 15% of Consolidated Total Assets of Borrower and its Subsidiaries, Borrower shall have the option, directly or through one or more of its Subsidiaries, to invest Net Asset Sale Proceeds within three hundred sixty-five days of receipt thereof in long-term productive assets of the general type that are used or useful in the business of Borrower and its Subsidiaries, which 365-day period may be extended by an additional 180 days if Borrower shall have provided to Administrative Agent a binding commitment to reinvest such Restricted Subsidiaryamounts; provided further that the Net Asset Sale Proceeds received by Borrower or any of its Subsidiaries in connection with a Piedmont Disposition shall not be required to be used to prepay the Loans and/or reduce the Revolving Commitments so long as, as of the case may be, receives consideration at the time date of such Asset Sale at least equal to the Fair Market Value of the assets Sale, (i) Atlantic Piedmont Holdings, LLC and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and Piedmont Green Power, LLC have not become Guarantors hereunder, (ii) no Letters of Credit issued hereunder in support of any obligations of either of Atlantic Piedmont Holdings, LLC or Piedmont Green Power, LLC remain outstanding and (Aiii) at least 75% of the consideration paid to the Company any intercompany debt of, or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption equity contribution made by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person Sponsor or its parent company agrees to indemnify and hold Subsidiaries to, Atlantic Piedmont Holdings, LLC or Piedmont Green Power, LLC following the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost Effective Date has been repaid in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madefull.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Atlantic Power Corp)

Asset Sales. (a) The Company will not, and will not cause If the Borrower or permit any Restricted Subsidiary to, consummate shall at any time or from time to time make any Asset Sale unless or shall suffer an Event of Loss resulting in Net Available Cash in excess of $1,000,000,000 (ithe “Asset Sale Threshold”) in the Company aggregate for all such Asset Sales or such Restricted SubsidiaryEvents of Loss (other than as a result of proceeds pending investment or reinvestment pursuant the proviso hereto), as then promptly and in any event within five (5) Business Days of receipt by the case may be, receives consideration at Borrower or the time Subsidiary of the Net Available Cash of such Asset Sale at least or such Event of Loss, the Borrower shall prepay the Initial Term Loans in an aggregate amount equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75100% of the consideration paid to amount of all such Net Available Cash in excess of the Company or such Restricted Subsidiary from such Asset Sale Threshold; provided that, in the case of each Asset Sale and all other Asset Sales since Event of Loss, if the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) Borrower or the assumption applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Sale or receipt of Net Available Cash from an Event of Loss, the Net Available Cash thereof in any assets to be used by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person Borrower or its parent company agrees Subsidiaries in its business (the “Reinvested Deferred Amount”), then the Borrower shall not be required to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost make a mandatory prepayment under this Section in respect of such assumed liabilities accompanied by Reinvested Deferred Amount to the posting of a letter of credit (issued by a commercial bank extent such Reinvested Deferred Amount is actually invested or reinvested within such twelve-month period; provided, however, that if any Reinvested Deferred Amount has an Investment Grade Rating) in favor not been so invested or reinvested prior to the expiration of the Company or such Restricted Subsidiary for period, the full Borrower shall promptly prepay the Initial Term Loans in the amount of such liabilities and for Reinvested Deferred Amount in excess of the amount specified above not so long as such liabilities remain outstanding unless such indemnifying party (invested or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implicationsreinvested; provided, in any casefurther, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) if, at the time that any such prepayment would be required hereunder, the indemnity Borrower is entered intorequired to redeem, repurchase, prepay or offer to repurchase any other Indebtedness secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with such Net Available Cash (such Indebtedness required to be prepaid or offered to be so repurchased, the “Other Applicable Indebtedness”), then the Borrower may apply such Net Available Cash on a pro rata basis to the prepayment of the Initial Term Loans and to the redemption, repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) (“Permitted Consideration”) or (B) at such time; provided that the Fair Market Value of all forms portion of such consideration other than Permitted Consideration since Net Available Cash allocated to the Issue Date does Other Applicable Indebtedness shall not exceed the amount of such Net Available Cash required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Available Cash shall be allocated to the Initial Term Loans in accordance with the aggregate 5% terms hereof), and the amount of the Adjusted Consolidated Net Tangible Assets prepayment of the Company determined at Initial Term Loans that would have otherwise been required pursuant to this Section shall be reduced accordingly; provided, further, that to the time extent the holders of the Other Applicable Indebtedness decline to have such Asset Sale is madeIndebtedness prepaid, redeemed or repurchased, the declined amount shall promptly be applied to prepay the Initial Term Loans in accordance with the terms hereof. The amount of each such prepayment shall be applied to the outstanding Initial Term Loans until paid in full.

Appears in 1 contract

Samples: Credit Agreement (Microchip Technology Inc)

Asset Sales. No later than the third (a3rd) The Company will not, and will not cause or permit Business Day following the date of receipt by any Restricted Subsidiary to, consummate Credit Party of any Net Asset Sale unless Proceeds in excess of $2,000,000 in the aggregate in any four consecutive Fiscal Quarter period, Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in assets of the general type used in the business of Company if such assets are purchased or constructed within three hundred sixty (360) days following receipt of such Net Asset Sale Proceeds; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall be, at the option of Company, either (i) held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent, or (ii) applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and upon such application, the Administrative Agent shall establish a reserve against Availability in an amount equal to the amount of such Asset Sale Reinvestment Amounts so applied and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall be held at all times prior to such reinvestment in an escrow account in form and substance reasonable acceptable to Administrative Agent. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earlier of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time last day of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale three hundred sixty (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale360) day period and (ii) (A) at least 75% the date of the consideration paid to the Company or such Restricted Subsidiary from occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Reinvestment Amounts to the Notes) Obligations as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or set forth in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.14(b).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Mortons Restaurant Group Inc)

Asset Sales. (a) The Company will Except for the sale of assets required to be sold ----------- to conform with governmental requirements, the Guarantor shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, consummate any Asset Sale unless (i) Sale, if the Company or aggregate net book value of all such Restricted SubsidiaryAsset Sales consummated during the four calendar quarters immediately preceding any date of determination would exceed 25% of the total assets of the Guarantor and its Consolidated Subsidiaries as of the beginning of the Guarantor's most recently ended full fiscal quarter; provided, as the case may behowever, receives consideration at the time of that any such Asset Sale at least equal will be disregarded for purposes of -------- ------- the 25% limitation specified above: (a) if any such Asset Sale is in the ordinary course of business of the Guarantor and its Subsidiaries; (b) if the assets subject to any such Asset Sale are worn out or are no longer useful or necessary in connection with the operation of the businesses of the Guarantor or its Subsidiaries; (c) if the assets subject to any such Asset Sale are being transferred to a Wholly-Owned Subsidiary of the Guarantor; (d) to the Fair Market Value of extent the assets and property subject to any such Asset Sale involve transfers of assets of or equity interests in connection with the Caribou Joint Venture; (e) if the proceeds from any such Asset Sale (such Fair Market Value to be determined on the date i) are, within 12 months of contractually agreeing to effect such Asset Sale) and , invested or reinvested by the Guarantor or any Subsidiary in a Permitted Business, (ii) (A) at least 75% are used by the Guarantor or a Subsidiary to repay Debt of the consideration paid to the Company Guarantor or such Restricted Subsidiary from Subsidiary, or (iii) are retained by the Guarantor or its Subsidiaries; or (f) if, prior to any such Asset Sale, Xxxxx'x and S&P confirm the then current Guarantor Ratings after giving effect to any such Asset Sale; provided, however, that the forgoing provision shall not be deemed to permit an Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) which would otherwise be prohibited as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu application of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.Section 15.17. -------------

Appears in 1 contract

Samples: PPL Supply Guarantee (PPL Energy Supply LLC)

Asset Sales. (a) The Company will notSubject to Section 2.11(e), and will not cause no later than the fifth Business Day following the date of receipt by Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale Proceeds in respect of any Asset Sale, Borrower shall prepay the Term Loans in an aggregate amount equal to such Net Asset Sale unless Proceeds; provided that (i) the Company or such Restricted Subsidiaryso long as no Default shall have occurred and be continuing, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% to the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $150,000,000, Borrower may, prior to the date of the consideration paid required prepayment, deliver to Administrative Agent a certificate of an Authorized Officer of Borrower to the Company effect that Borrower intends to, directly or through one or more of its Subsidiaries, invest such Restricted Subsidiary from Net Asset Sale Proceeds (or a portion thereof specified in such certificate) within 365 days of receipt thereof in long-term productive assets of the general type used in the business of Borrower and its Subsidiaries and (unless such Asset Sale and all other Asset Sales since the Issue Date, on was made by a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are is not a Credit Party and such reinvestment is made by their terms subordinated such Subsidiary) that constitute Term Collateral, and certifying that no Default has occurred and is continuing, in which case Borrower may so reinvest such Net Asset Sale Proceeds within such period; provided further, (x) to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for extent any such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost Net Asset Sale Proceeds shall be received in respect of assets owned by a Credit Party, such assumed liabilities accompanied Net Asset Sale Proceeds may be reinvested only in assets owned by one or more Credit Parties (other than, in each case, Equity Interests in Foreign Subsidiaries, except to the extent such Net Asset Sale Proceeds shall have resulted from the sale of Equity Interests in one or more Foreign Subsidiaries), (y) any such Net Asset Sale Proceeds that are not so reinvested by the posting end of such period shall be applied to prepay the Term Borrowings upon the expiration of such period and (z) all Net Asset Sale Proceeds received after Net Asset Sale Proceeds exceeding $150,000,000 have been reinvested pursuant to this clause (ii) may not be so reinvested and shall be applied to prepay the Term Loans. Any amount referred to in any such certificate shall, pending prepayment or reinvestment as provided in such certificate or application to prepay the Term Loan, be held as Cash or Cash Equivalents in a letter Deposit Account of credit (issued by Borrower that is subject to a commercial bank that has an Investment Grade Rating) Control Agreement in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities Collateral Agent and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeconstitutes Term Collateral.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Griffon Corp)

Asset Sales. (a) The Company will not, and will not cause or permit No later than the first Business Day following the date of receipt by any Restricted Subsidiary to, consummate Credit Party of any Net Asset Sale unless Proceeds in excess of $250,000 in the aggregate since the Restatement Date, the Companies shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, the Companies shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of the Companies if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,000 or more has been consented to by Administrative Agent and Requisite Lenders) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, at the option of the Companies, be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent. In the event that the Asset Sale Reinvestment Amounts are not reinvested by the Companies prior to the earliest of (i) the Company or last day of such Restricted Subsidiaryone hundred twenty (120) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has not been executed in accordance with the other provisions of this Agreement), as (ii) the case last day of such one hundred eighty (180) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, Administrative Agent may be, receives consideration at the time of apply such Asset Sale at least equal Reinvestment Amounts to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is Obligations as set forth in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.14(b).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Meridian Waste Solutions, Inc.)

Asset Sales. Subject to Section 2.14(h), no later than the third Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay the Term Loans as set forth in Section 2.15(b) in an aggregate amount equal to 100% of such Net Asset Sale Proceeds; provided, (i) so long as no Default under Sections 8.1(a), (f) and (g) or Event of Default shall have occurred and be continuing, Borrower shall have the option, directly or through one or more of its Subsidiaries, in lieu of prepayment, (1) to invest such Net Asset Sale Proceeds within twelve months of receipt thereof or (2) to commit to invest such Net Asset Sale Proceeds within such twelve-month period provided such Net Asset Sale Proceeds are actually reinvested within eighteen months of receipt thereof in other productive assets of the general type used or useful in the business of Borrower and its Subsidiaries; provided further that no prepayment shall be required by this paragraph (a) The Company will not, and will not cause or permit to be made with any Restricted Subsidiary to, consummate portion of the Net Asset Sale Proceeds of any Asset Sale unless (i) sale by a Foreign Subsidiary to the Company extent that the declaration or such Restricted Subsidiary, as the case may be, receives consideration at the time payment of dividends or similar distributions by that Foreign Subsidiary of such portion of the Net Asset Sale at least equal to the Fair Market Value of the assets and property subject Proceeds with respect to such Asset Sale (such Fair Market Value x) is not permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to be determined on that Foreign Subsidiary or any other Foreign Subsidiary that is a direct or indirect holder of its Equity Interests, or (y) would result in material adverse tax consequences to the date Borrower or one of contractually agreeing its Subsidiaries, provided further that with respect to effect such Asset Saleeach of clauses (x) and (iiy) (A) at least 75% above, in the event such dividend or distribution is prohibited by local law attributable to any such Foreign Subsidiary, the portion of the consideration paid to the Company or such Restricted Subsidiary from such Net Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption Proceeds so affected may be retained by the acquiring Person applicable Foreign Subsidary as long as the applicable local law will not permit such dividend or distribution, and once repatriation of Indebtedness any such funds is permitted under applicable local law, such repatriation will be promptly effected and such repatriated funds will be promptly applied (net of additional taxes payable or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) reserved against as a result thereof) to the prepayment of which the Company and Loans. Notwithstanding the remaining Restricted Subsidiaries are no longer liable for such liabilities foregoing, the Net Asset Sale Proceeds from the Potential ATS Sale shall be repaid as follows: (or in lieu x) 100% of such absence of liabilityNet Asset Sale Proceeds shall be used to prepay the Loans and/or the Revolving Loans as set forth in Section 2.15(b) and (y) to the extent any Lender exercises its rights under Section 2.15(c) and waives such mandatory prepayment, the acquiring Person or its parent company agrees Borrower may use such remaining Net Asset Sale Proceeds (i) to indemnify and hold reinvest in accordance with the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost timeframes set forth in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”this Section 2.14(a) or (Bii) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madefor Investments permitted pursuant to Section 6.6.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Aeroflex Holding Corp.)

Asset Sales. (a) The Company will FHGLP shall not, and will shall not cause or permit any Restricted Subsidiary to, consummate any Asset Sale Sale, unless (i) the consideration received by the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale Subsidiary is at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date sold or disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to received consists of cash or Temporary Cash Investments or the assumption of senior Indebtedness of the Company or Indebtedness of a Restricted Subsidiary, PROVIDED that the Company or such Restricted Subsidiary is irrevocably released from all liability under such Asset Sale Indebtedness. In the event and all other to the extent that the Net Cash Proceeds received by the Company or any of its Restricted Subsidiaries from one or more Asset Sales since occurring on or after the Issue Date, on Date in any period of 12 consecutive months exceed 15% of Operating Cash Flow of the Restricted Group (determined as of the date closest to the commencement of such 12-month period for which a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities consolidated balance sheet of the Company and its Subsidiaries has been filed with the Commission or a provided to the Trustee pursuant to Section 4.03 hereof), then the Company shall or shall cause the relevant Restricted Subsidiary to (i) within twelve months after the date Net Cash Proceeds so received exceed 15% of such Operating Cash Flow (the "Application Period") (A) apply an amount equal to such excess Net Cash Proceeds to permanently repay senior Indebtedness of the Company, or any Restricted Subsidiary providing a Subsidiary Guarantee pursuant to Section 4.11 hereof described above or Indebtedness of any other Restricted Subsidiary, in each case owing to a Person other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result any of which the Company and the remaining its Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) invest an equal amount, or the Fair Market Value of all forms amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within 12 months after the date of such consideration agreement (the "Contract Period")), in property or assets (other than Permitted Consideration since current assets) of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the Issue Date does nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the Application Period or the Contract Period, as applicable, referred to in clause (i)) such excess Net Cash Proceeds (to the extent not exceed applied pursuant to clause (i)) as provided in the following paragraph of this Section 4.15. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, as of the first day of any calendar month, the aggregate 5amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.15 totals at least $10.0 million, the Issuers must commence, not later than the fifteenth Business Day of such month, and consummate an Offer to Purchase from the Holders on a pro rata basis an aggregate principal amount or aggregate Accreted Value, as applicable, of Debentures equal to the Excess Proceeds on such date, at a purchase price equal to 100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof in the case of Senior Debentures and a purchase price equal to 100% of the Company determined at Accreted Value thereof in the time such Asset Sale is madecase of Senior Discount Debentures, plus, in each case, accrued interest (if any) to the date of payment.

Appears in 1 contract

Samples: Falcon Funding Corp

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date or Equity Interests issued or sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid therefor received by the Company or such Restricted Subsidiary is in the form of cash; provided that the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary transferee that are immediately converted by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless into cash (to the extent of the cash received) shall be deemed to be cash for purposes of this provision. Within 360 days of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Senior Debt (and against any loss, liability to correspondingly permanently reduce commitments with respect thereto in the case of revolving borrowings) or cost in respect (ii) to fulfill reimbursement obligations arising under the LC Facility to the extent such reimbursement obligations arose as a result of actual cash payments having been made under such assumed liabilities accompanied by facility for the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor benefit of the Company in connection with the Eau Claire IRBs (and to correspondingly permanently reduce reimbursement obligations with respect thereto) or to cash collateralize the LC Facility if the Indebtedness under the Credit Agreement has been accelerated or (iii) the making of a capital expenditure or the acquisition of other long-term assets (including the acquisition of Capital Stock of a Person) in the same line of business as the Company immediately prior to such Restricted Subsidiary for acquisition. Pending the full final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party Excess Proceeds exceeds $5.0 million (or its long term debt securitiesan "Excess Proceeds Triggering Event"), the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer") shall have to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, offer price in any case, that contemplates such indemnifying party (or its long term debt securities) failing cash in an amount equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, pursuant to the provisions of Section 3.09 hereof. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company determined at may use any remaining Excess Proceeds for general corporate purposes. If the time such aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of an Asset Sale is madeOffer, the amount of Excess Proceeds shall be reset at zero.

Appears in 1 contract

Samples: Supplemental Indenture (Plainwell Inc)

Asset Sales. Borrower is required to prepay or offer to repurchase (ax) The Company will notPermitted Short Term Indebtedness, and will not cause or permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) solely to the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of extent that such Asset Sale at least equal constitutes a Specified Divestiture, (y) Permitted First Priority Refinancing Debt, or (z) any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Indebtedness, in the case of clauses (x) through (z), with the Net Cash Proceeds of such Asset Sale (such Fair Market Value Permitted Short Term Indebtedness, Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then such Co-Borrower shall apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of contractually agreeing such rejection) be applied to effect prepay the Term Loans in accordance with the terms hereof; provided further that: (i) no such prepayment shall be required under this Section 2.10(c) with respect to (A) any Asset SaleSale permitted by Section 6.06 other than clauses (b) and (i) thereof, (B) the disposition of property which constitutes a Casualty Event, or (C) Asset Sales for fair market value resulting in less than $50,000,000 in Net Cash Proceeds in any fiscal year; and (ii) so long as no Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that the Designated Company shall have delivered an Officers’ Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets or to make Permitted Acquisitions (Aand (x) in the case of Net Cash Proceeds received from the arm’s length sale or disposition for cash of Equity Interests in a Joint Venture Subsidiary for fair market value or the issuance of Equity Interests in a Joint Venture Subsidiary, in each case as permitted under Section 6.06 hereof, such Net Cash Proceeds may also be used to make investments in joint ventures so long as a Company owns at least 7550% of the consideration paid to Equity Interests in such joint venture and (y) in the Company or such Restricted Subsidiary case of Net Cash Proceeds from such an Asset Sale and all by a Joint Venture Subsidiary, such Net Cash Proceeds may also be used by such Joint Venture to reinvest in property (other Asset Sales since the Issue Date, on a cumulative basis, is in the form of than cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company Equivalents and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have to be owned by such Joint Venture and used in an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securitiesactivity permitted under Section 6.15) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.131 1031947.12E-CHISR1060441.10-CHISR01A - MSW

Appears in 1 contract

Samples: Credit Agreement (Novelis Inc.)

Asset Sales. (a) The Company will not, and will not cause Not later than the 10th Business Day following the date of receipt by the Borrower or permit any Restricted Subsidiary toof any Net Proceeds in respect of any Asset Sale, consummate the Borrower shall prepay the Borrowings in an aggregate amount equal to 100% of such Net Proceeds (excluding therefrom, however, in the case of any Asset Sale unless involving any ABL Priority Collateral (whether in the form of a direct sale, transfer or other disposition of such ABL Priority Collateral or a sale, transfer or other disposition of Equity Interests in any Restricted Subsidiary owning such ABL Priority Collateral) that secures any Permitted Revolving Indebtedness at the time such Asset Sale occurs, the portion of such Net Proceeds attributable to the fair value of such ABL Priority Collateral (net of any related transferred liabilities, in each case as determined reasonably and in good faith by an Authorized Officer of the Borrower)); provided that (i) no such prepayment shall be required to be made (but, ​ in the Company or sole discretion of the Borrower, may be made) until and unless the aggregate amount of Net Proceeds in respect of all Asset Sales exceed the greater of (A) $10,000,000 and (B) 16.7% of Consolidated Adjusted EBITDA for the most recently ended Test Period, in any Fiscal Year, at which time the prepayment shall be required to be made only with respect to such Restricted Subsidiary, as the case may be, receives consideration at the time Net Proceeds in excess of such Asset Sale at least equal annual amount, and (ii) the Borrower may, prior to the Fair Market Value date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be used to restore, rebuild, repair, construct, improve, replace or otherwise acquire assets useful in the business of the Borrower and property the Restricted Subsidiaries or to be applied to consummate an Acquisition (provided that to the extent of the fair value of any Term Priority Collateral subject to such Asset Sale (such Fair Market Value as determined reasonably and in good faith by an Authorized Officer of the Borrower), the assets to be determined on reinvested in or to be acquired as part of such Acquisition shall constitute Term Priority Collateral), in each case, within 365 days after the date receipt of contractually agreeing such Net Proceeds, in which case during such period the Borrower shall not be required to effect make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested or applied by the end of such period (or, if by the end of such 365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into a binding agreement with a third party to acquire such assets or to consummate an Acquisition, within a period of 180 days thereafter) shall be applied to prepay the Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Asset Sale that would otherwise be required pursuant to this Section 2.14(a) to be applied to prepay the Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Asset Sale (with the amount of the prepayment of the Borrowings that would otherwise have been required pursuant to this Section 2.14(a) being reduced accordingly), provided that (i) such portion shall not exceed the product of (x) the amount of such Net Proceeds multiplied by (y) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Borrowings, in each case at the time of occurrence of such Asset Sale) , and (ii) in the event the holders of such Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (Aand in any event within 10 Business Days after the date of rejection) at least 75% be applied to prepay the Borrowings. Any amount set forth in any certificate delivered as referred to above shall, pending reinvestment or other application as provided herein, be deposited in the Term Priority Collateral Proceeds Account and shall not be commingled with any other deposit accounts or funds (with the Collateral Agent hereby agreeing to release such Net Proceeds held in the Term Priority Collateral Proceeds Account to the Borrower promptly upon request of the consideration paid Borrower and delivery to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on Collateral Agent of a cumulative basis, is in the form certificate of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities an Authorized Officer of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Borrower to the Notes) as a result of which effect that the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or Net Proceeds so released will be promptly applied in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (accordance with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madethis Section 2.14(a)).

Appears in 1 contract

Samples: Term Credit and Guaranty Agreement (QualTek Services Inc.)

Asset Sales. (a) The Company will not, and will not cause Not later than the 10th Business Day following the date of receipt by the Borrower or permit any Restricted Subsidiary toof any Net Proceeds in respect of any Asset Sale, consummate the Borrower shall prepay the Borrowings in an aggregate amount equal to 100% of such Net Proceeds (excluding therefrom, however, in the case of any Asset Sale unless involving any ABL Priority Collateral (whether in the form of a direct sale, transfer or other disposition of such ABL Priority Collateral or a sale, transfer or other disposition of Equity Interests in any Restricted Subsidiary owning such ABL Priority Collateral) that secures any Permitted Revolving Indebtedness at the time such Asset Sale occurs, the portion of such Net Proceeds attributable to the fair value of such ABL Priority Collateral (net of any related transferred liabilities, in each case as determined reasonably and in good faith by an Authorized Officer of the Borrower)); provided that (i) no such prepayment shall be required to be made (but, in the Company or sole discretion of the Borrower, may be made) until and unless the aggregate amount of Net Proceeds in respect of all Asset Sales exceed the greater of (A) $10,000,000 and (B) 16.7% of Consolidated Adjusted EBITDA for the most recently ended Test Period, in any Fiscal Year, at which time the prepayment shall be required to be made only with respect to such Restricted Subsidiary, as the case may be, receives consideration at the time Net Proceeds in excess of such Asset Sale at least equal annual amount, and (ii) the Borrower may, prior to the Fair Market Value date of the required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause such Net Proceeds (or a portion thereof specified in such certificate) to be used to restore, rebuild, repair, construct, improve, replace or otherwise acquire assets useful in the business of the Borrower and property the Restricted Subsidiaries or to be applied to consummate an Acquisition (provided that to the extent of the fair value of any Term Priority Collateral subject to such Asset Sale (such Fair Market Value as determined reasonably and in good faith by an Authorized Officer of the Borrower), the assets to be determined on reinvested in or to be acquired as part of such Acquisition shall constitute Term Priority Collateral), in each case, within 365 days after the date receipt of contractually agreeing such Net Proceeds, in which case during such period the Borrower shall not be required to effect make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Proceeds that are not so reinvested or applied by the end of such period (or, if by the end of such 365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into a binding agreement with a third party to acquire such assets or to consummate an Acquisition, within a period of 180 days thereafter) shall be applied to prepay the Borrowings promptly upon the expiration of such period. Notwithstanding the foregoing, the Borrower may use a portion of any Net Proceeds in respect of any Asset Sale that would otherwise be required pursuant to this Section 2.14(a) to be applied to prepay the Borrowings to prepay, repurchase or redeem any Permitted Credit Agreement Refinancing Indebtedness or any Permitted Incremental Equivalent Indebtedness that, in each case, constitutes Permitted Pari Passu Secured Indebtedness but only to the extent such Permitted Pari Passu Secured Indebtedness pursuant to the terms thereof is required to be (or is required to be offered to the holders thereof to be) prepaid, repurchased or redeemed as a result of such Asset Sale (with the amount of the prepayment of the Borrowings that would otherwise have been required pursuant to this Section 2.14(a) being reduced accordingly), provided that (i) such portion shall not exceed the product of (x) the amount of such Net Proceeds multiplied by (y) a fraction of which the numerator is the outstanding aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and the denominator is the sum of the aggregate principal amount of such Permitted Pari Passu Secured Indebtedness and all Borrowings, in each case at the time of occurrence of such Asset Sale) , and (ii) in the event the holders of such Permitted Pari Passu Secured Indebtedness shall have declined such prepayment, repurchase or redemption, the declined amount shall promptly (Aand in any event within 10 Business Days after the date of rejection) at least 75% be applied to prepay the Borrowings. Any amount set forth in any certificate delivered as referred to above shall, pending reinvestment or other application as provided herein, be deposited in the Term Priority Collateral Proceeds Account and shall not be commingled with any other deposit accounts or funds (with the Collateral Agent hereby agreeing to release such Net Proceeds held in the Term Priority Collateral Proceeds Account to the Borrower promptly upon request of the consideration paid Borrower and delivery to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on Collateral Agent of a cumulative basis, is in the form certificate of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities an Authorized Officer of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Borrower to the Notes) as a result of which effect that the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or Net Proceeds so released will be promptly applied in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (accordance with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.this Section 2.14(a)). 100

Appears in 1 contract

Samples: Term Credit and Guaranty Agreement (QualTek Services Inc.)

Asset Sales. No later than the fifth (a5/th/) The Company will not, and will not cause Business Day ----------- following the date of receipt by ChipPAC or permit any Restricted Subsidiary to, consummate of its Subsidiaries of Cash Proceeds of any Asset Sale unless Sale, Company shall prepay the Loans (iand/or the Revolving Loan Commitments or Term Delayed Draw Loan Commitments shall be reduced) in an amount equal to the Net Cash Proceeds received with respect thereto; provided that, if ChipPAC -------- shall have delivered a Reinvestment Notice to the Administrative Agent no later than the fifth (5/th/) Business Day following the consummation of such Asset Sale, Company or such Restricted Subsidiary, as shall not be required to make any prepayment with the case may be, receives consideration at the time proceeds of such Asset Sale to the extent that any of such proceeds are reinvested (or as to which a contract has been entered into to reinvest) in Reinvestment Assets within 365 days from the date of receipt of such proceeds; provided further that the aggregate -------- ------- amount of Net Cash Proceeds that may be reinvested pursuant to the immediately preceding proviso shall not exceed $15,000,000 in any Fiscal Year (or $30,000,000 in any Fiscal Year at least any time the Leverage Ratio, determined on a Pro Forma Basis after giving effect to such Asset Sale, is less than 3.50:1.00); and provided still further -------- ----- ------- that, on each Reinvestment Prepayment Date, an amount equal to the Fair Market Value Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to prepay the Loans (and/or the Revolving Loan Commitments or Term Delayed Draw Loan Commitments shall be reduced). Concurrently with any prepayment of Loans (and/or any reduction in the Revolving Loan Commitments or Term Delayed Draw Loan Commitments) pursuant to this subsection 2.4B(iii)(a), ChipPAC shall deliver to the Administrative Agent an Officer's Certificate demonstrating in detail reasonably satisfactory to the Administrative Agent the derivation of the assets and property subject to such Net Cash Proceeds of the correlative Asset Sale (such Fair Market Value to be determined on from the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Dategross sales price thereof. In addition, on a cumulative basis, is in the form event that ChipPAC shall, at any time after receipt of cash, Cash Equivalents, Liquid Securities, Exchanged Properties proceeds of any Reinvestment Event requiring a prepayment (including and/or a reduction in the Revolving Loan Commitments) pursuant to Asset Swapsthis subsection 2.4B(iii)(a), determine that the prepayments (and/or a reduction in the Revolving Loan Commitments) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost previously made in respect of such assumed liabilities accompanied Reinvestment Event were in an aggregate amount less than that required by the posting terms of a letter this subsection 2.4B(iii)(a), Company shall promptly cause to be made an additional prepayment of credit the Loans (issued by a commercial bank that has an Investment Grade Ratingand/or reduction in the Revolving Loan Commitments) in favor an amount equal to the amount of any such deficit, and ChipPAC shall concurrently therewith deliver to the Administrative Agent an Officer's Certificate demonstrating the derivation of the additional proceeds resulting in such deficit. If Company or is otherwise required to apply any portion of Net Cash Proceeds to prepay Indebtedness evidenced by the Subordinated Debt then, notwithstanding anything contained in this Agreement to the contrary, ChipPAC shall cause such Restricted Subsidiary for Net Cash Proceeds to be applied to the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% prepayment of the Adjusted Consolidated Net Tangible Assets of Loans so as to eliminate or minimize any obligation to be applied to prepay the Company determined at the time such Asset Sale is madeSubordinated Debt.

Appears in 1 contract

Samples: Chinese Security Agreement (Chippac LTD)

Asset Sales. (a) The On the third Business Day following the 180th day after any day on which Company will not, and will not cause or permit any Restricted Subsidiary to, consummate of its Subsidiaries receives any Net Asset Sale unless Proceeds, Company shall prepay the Loans (together with any other Indebtedness that is pari passu with the Loans containing provisions similar to those set forth in this Agreement with respect to prepayments or offers to purchase or redeem with the proceeds of sales of assets) in an aggregate amount equal to the difference (if any) between (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time amount of such Net Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) Proceeds so received and (ii) the sum of (A) at least 75% all investments in long-term productive assets of the consideration paid to general type used in the business of Company or and its Subsidiaries that are made within such Restricted Subsidiary 180-day period from such Net Asset Sale Proceeds (or, if such Net Asset Sale Proceeds were temporarily applied to reduce amounts outstanding under the Senior Credit Facility, from correlative reborrowings under the Senior Credit Facility) and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) all permanent reductions of the Fair Market Value of all forms commitments under the Senior Credit Facility that have then become effective by reason of, or in respect of, the receipt of such consideration other than Permitted Consideration since Net Asset Sale Proceeds or any failure during such 180-day period to reinvest such Net Asset Sale Proceeds (or, if such Net Asset Sale Proceeds were temporarily applied to reduce amounts outstanding under the Issue Date does not exceed Senior Credit Facility, any failure to invest correlative reborrowings under the Senior Credit Facility) in long-term productive assets of the general type used in the business of Company and its Subsidiaries. If the aggregate 5% principal amount of the Adjusted Consolidated Loans and other pari passu Indebtedness required to be prepaid, purchased or redeemed with Net Tangible Assets of the Company determined at the time such Asset Sale is madeProceeds exceeds the amount of Net Asset Sale Proceeds, the prepayment, purchase or redemption shall be made on a pro rata basis.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Bill Barrett Corp)

Asset Sales. No later than the first Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds shall be deposited into a Controlled Account on the same Business Day as receipt thereof), Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) The Company will notin an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, and will not cause or permit any Restricted Subsidiary to, consummate any (ii) to the extent that aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of determination do not exceed $250,0001,500,000 in any twelve consecutive month period, upon delivery of a written notice to Administrative Agent, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within onetwo hundred eightyseventy (180270) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,0001,500,000 or more in any twelve consecutive month period has been consented to by Administrative Agent and Required Lenders); provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall, if requested by Administrative Agent, be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent.Notwithstanding the foregoing, with respect to the Las Vegas Termination Payments, the Company shall be required to prepay the Obligations by an amount equal to the Las Vegas Excess Termination Payments in accordance with Section 2.14(b) (in lieu of reinvestment), unless the Company has notified the Administrative Agent, in writing and prior to 30 days after receipt by Holdings or its Subsidiaries of any Las Vegas Termination Payments, of the specific investment into which such Las Vegas Excess Termination Payments shall be re-invested, in which case, the Las Vegas Excess Termination Payments may be reinvested in accordance with this Section 2.13(a) in such designated specific investment (or applied to prepay the Obligations in accordance with this Section 2.13(a)). In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earlier of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time last day of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale onetwo hundred eightyseventy (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale180270) day period, and (ii) (A) at least 75% the date of the consideration paid to the Company or such Restricted Subsidiary from occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Reinvestment Amounts to the Notes) Obligations as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or set forth in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.14(b).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)

Asset Sales. In addition to any other mandatory prepayments and offers of prepayments pursuant to this Section 5.01, on each date after the Funding Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any Asset Sale, other than an Excluded Asset Disposition, an amount equal to the Note Facility Mandatory Prepayment Amount of 100% of the Net Sale Proceeds therefrom (a1) The Company will notautomatically applied as a mandatory prepayment in accordance with the requirements of Section 5.01(j) if a Mandatory Payment Condition is in effect, and will (2) otherwise offered to the Holders for prepayment of the Senior Notes if a Mandatory Payment Condition is not cause in effect, and if such offer is accepted in accordance with Section 5.01(i) below, such amount shall be applied as a mandatory prepayment in accordance with the requirements of Section 5.01(j); provided, however, that if such proceeds do not include proceeds of any Disposition of any Xxxxxxx Vessel or permit Fishing Rights appurtenant thereto, and if (x) there exists an Interest Deferral Period, but no Default or Event of Default then exists and the gross proceeds of such Asset Sales do not exceed in the aggregate (including amounts incurred under clause (y) hereof but excluding any Restricted Subsidiary toamounts incurred under clause (z) of this subsection) for any fiscal year $5,000,000, consummate or (y) no Interest Deferral Period, Default or Event of Default is then in effect and such gross proceeds do not in the aggregate exceed (including amounts incurred under clause (x) hereof but excluding any amounts incurred under clause (z) of this subsection) $20,000,000 in respect of all amounts occurring during any fiscal year, or (z) no Default or Event of Default then exists and such proceeds are received from a Sale-Leaseback Transaction and do not exceed the Sale Leaseback Limit; then such Net Sale Proceeds shall not be required to be so applied to the extent that the Company has delivered to the Holders a Notice of Asset Sale unless stating that such Net Sale Proceeds shall be used to acquire productive tangible assets (ior Fishing Rights) of comparable monetary value to be engaged in the Business within 270 days following the date of the receipt of such Net Sale Proceeds (which Notice shall set forth the estimates of the Net Sale Proceeds to be so expended), and provided, further, that if all or any portion of such Net Sale Proceeds not required to be so applied pursuant to the preceding proviso are not so used within 270 days after the date of the receipt of such Net Sale Proceeds (or such earlier date, if any, as the Company or the relevant Subsidiary determines not to reinvest the Net Sale Proceeds as set forth above), such Restricted Subsidiaryremaining portion shall be applied on the last day of such period (or such earlier date, as the case may be, receives consideration at the time of such Asset Sale at least equal ) as provided above in this Section 5.01(c) without regard to the Fair Market Value of preceding proviso. All replacement assets shall, in accordance with Section 8.12, promptly become subject to the perfected, first priority Senior Creditor Liens, to the extent the assets and property subject to such Asset Sale (such Fair Market Value were required pursuant to the terms of the Senior Note Documents to be determined on the date of contractually agreeing subject to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeLiens.

Appears in 1 contract

Samples: Note Purchase Agreement (American Seafoods Corp)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) the Company Company, or such the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject or Equity Interests sold or otherwise disposed of (evidenced by a resolution of the Board of Directors of such entity set forth in an Officers' Certificate delivered to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset SaleTrustee) and (ii) (A) at least 75% of the consideration paid to therefor received by the Company or such Restricted Subsidiary from such the Asset Sale and Sale, plus all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, (A) cash or Cash Equivalents, Liquid Securities, Exchanged Properties Equivalents or (including pursuant B) properties and capital assets to Asset Swaps) or the assumption be used by the acquiring Company or any Restricted Subsidiary in the Oil and Gas Business, or Capital Stock of a Person engaged in the Oil and Gas Business which becomes a Wholly Owned Subsidiary of Indebtedness the Company, or other liabilities any combination thereof (collectively the "CASH CONSIDERATION"); provided, that the amount of (x) any liabilities, as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, of the Company or a any Restricted Subsidiary (other than contingent liabilities of the Company or a Restricted Subsidiary and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) as that are assumed by the transferee of any such assets pursuant to (1) a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (2) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit liability (issued by a commercial bank provided, however, that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) and (“Permitted Consideration”y) any non Cash Consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted into cash by the Company or such Restricted Subsidiary within 90 days after such Asset Sale, shall be deemed to be cash for purposes of this provision to the extent of the cash received. Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (Bor the Restricted Subsidiary, as applicable) may apply, or enter into binding contracts (subject only to obtaining required governmental approvals) irrevocably committing the Company or the Restricted Subsidiary to apply, an amount equal to such Net Proceeds to an investment in another business, the making of a capital expenditure or the acquisition of other tangible assets, in each case in the Oil and Gas Business, or the Company (or the Restricted Subsidiary, as applicable) may apply such Net Proceeds to the permanent reduction of Senior Debt; provided, however, that pending application of an amount equal to such Net Proceeds pursuant to the preceding sentence, such Net Proceeds may be applied to temporarily reduce revolving credit indebtedness. The amount equal to (x) the Fair Market Value of all forms of such consideration other than Permitted Consideration since difference between the Issue Date does not exceed amount applied or invested or committed to be applied or invested, as provided in the preceding sentence of this paragraph and (y) the then aggregate 5amount of Net Proceeds from Asset Sales will be deemed to constitute "EXCESS PROCEEDS." On or prior to the 361st day after an Asset Sale, if the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an offer to all Holders of Notes and, to the extent required by the terms thereof, to all holders or lenders of Pari Passu Indebtedness (an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the asset sale offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the Adjusted Consolidated Net Tangible Assets principal amount (or accreted value in the case of Pari Passu Indebtedness issued with significant original issue discount) thereof plus accrued and unpaid interest and, with respect to the Notes or similar securities, Liquidated Damages or comparable amounts in the case of similar securities, if any, thereon to the date of purchase, in accordance with the procedures set forth below in this Section 4.10 or the agreements governing the Pari Passu Indebtedness, as applicable. To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders thereof, collectively, exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the Company determined at aggregate principal amount of tendered Notes and the time aggregate principal amount (or accreted value in the case of Pari Passu Indebtedness issued with significant original issue discount) of Pari Passu Indebtedness. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below. The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is made.required by applicable law (the "ASSET SALE OFFER PERIOD"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "ASSET SALE PURCHASE DATE"), the Company will purchase the principal amount of Notes and Pari Passu Indebtedness required to be purchased pursuant to this Section 4.10 (the "ASSET SALE OFFER AMOUNT") or, if less than the Asset Sale Offer Amount has been so validly tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made on the Notes and Pari Passu Indebtedness, respectively. If the Asset Sale Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest or Liquidated Damages will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders of Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such holders or lenders, as the case may be, to tender Notes pursuant to the Asset Sale Offer. The notice, which shall govern the terms of the Asset Sale Offer, shall state:

Appears in 1 contract

Samples: Indenture (Houston Exploration Co)

Asset Sales. Not later than three (a3) The Company will not, and will not cause or permit Business Days following the receipt of any Restricted Subsidiary to, consummate Net Cash Proceeds of any Asset Sale unless (i) by the Designated Company or any of its Restricted Subsidiaries, the applicable Co-Borrowers shall make prepayments of the Term Loans in accordance with Section 2.10(g) and (h) in an aggregate amount equal to 100% of such Restricted SubsidiaryNet Cash Proceeds; provided, as the case may be, receives consideration that if at the time of that any such prepayment would be required, such CoBorrower is required to prepay or offer to repurchase (x) Permitted Short Term Indebtedness, solely to the extent that such Asset Sale at least equal constitutes a Specified Divestiture, (y) Permitted First Priority Refinancing Debt, or (z) any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Indebtedness, in the case of clauses (x) through (z), with the Net Cash Proceeds of such Asset Sale (such Fair Market Value Permitted Short Term Indebtedness, Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then such Co-Borrower mayshall apply such Net Cash Proceeds on a pro rata basis (determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Net Cash Proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of liabilitythe Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within 10 Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Term Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.terms hereof; provided further that:

Appears in 1 contract

Samples: Credit Agreement (Novelis Inc.)

Asset Sales. (a) The Company will not, and will not cause or permit No later than the first Business Day following the date of receipt by any Restricted Subsidiary to, consummate Credit Party of any Net Asset Sale unless Proceeds in excess of $250,000 in the aggregate since the Closing Date, the Companies shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, the Companies shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in (1) long-term productive assets of the general type used in the business of the Companies if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,000 or more has been consented to by Administrative Agent and Requisite Lenders) or (2) Permitted Acquisitions if (x) a definitive purchase agreement with respect to such Permitted Acquisition is executed within one hundred twenty (120) days following receipt of such Net Asset Proceeds and (y) the transaction contemplated by such purchase agreement is consummated within one hundred eighty (180) days of receipt thereof; provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, at the option of the Companies, be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent. In the event that the Asset Sale Reinvestment Amounts are not reinvested by the Companies prior to the earliest of (i) the Company or last day of such Restricted Subsidiaryone hundred twenty (120) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has not been executed in accordance with the other provisions of this Agreement), as (ii) the case last day of such one hundred eighty (180) day period (if a definitive purchase agreement with respect to a Permitted Acquisition has been executed but the transactions contemplated thereby have not been consummated in accordance with the other provisions of this Agreement), and (iii) the date of the occurrence of an Event of Default, Administrative Agent may be, receives consideration at the time of apply such Asset Sale at least equal Reinvestment Amounts to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is Obligations as set forth in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.14(b).

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Meridian Waste Solutions, Inc.)

Asset Sales. Not later than three (a3) The Company will not, and will not cause or permit Business Days following the receipt of any Restricted Subsidiary to, consummate Net Cash Proceeds of any Asset Sale unless (i) by the Designated Company or any of its Restricted Subsidiaries, the applicable Co-Borrowers shall make prepayments of the Term Loans in accordance with Section 2.10(g) and (h) in an aggregate amount equal to 100% of such Restricted SubsidiaryNet Cash Proceeds; provided, as the case may be, receives consideration that if at the time of that any such prepayment would be required, such Co- 1160381.015-CHISR02A - MSW Borrower is required to prepay or offer to repurchase (x) Permitted Short Term Indebtedness, solely to the extent that such Asset Sale at least equal constitutes a Specified Divestiture, (y) Permitted First Priority Refinancing Debt, or (z) any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Indebtedness, in the case of clauses (x) through (z), with the Net Cash Proceeds of such Asset Sale (such Fair Market Value Permitted Short Term Indebtedness, Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then such Co-Borrower shall apply such Net Cash Proceeds on a pro rata basis (determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Net Cash Proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of liabilitythe Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within 10 Business Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Term Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.terms hereof; provided further that:

Appears in 1 contract

Samples: Credit Agreement (Novelis Inc.)

Asset Sales. No later than the third Business Day following the date of receipt by any Credit Party or any of its Subsidiaries of any Net Asset Sale Proceeds (ait being understood that such Net Asset Sale Proceeds shall be promptly deposited into and thereafter maintained in a Controlled Account which is a Term Loan Priority Account (and in any event no later than the next Business Day) The Company will notfollowing receipt thereof), Companies shall prepay the Loans as set forth in Section 2.11 in an aggregate amount equal to such Net Asset Sale Proceeds; provided, that (i) so long as no Default or Event of Default shall have occurred and be continuing, and will (ii) to the extent that, after giving effect to receipt of such Net Asset Proceeds, the aggregate Net Asset Sale Proceeds from all such Asset Sales during the period commencing on the Closing Date and ending on such date of determination do not cause exceed $1,000,000 (such amounts, “Asset Sale Reinvestment Amounts”), upon delivery of a written notice to Administrative Agent, Companies shall have the option to invest such Asset Sale Reinvestment Amounts within three hundred sixty-five (365) days of receipt thereof (as extended, if at all, in accordance with the proviso below, the “Asset Sale Reinvestment Period”) in long-term productive assets that constitute Term Loan Priority Collateral of the general type used in the business of (A) Companies and (B) Lifecore or permit any Restricted Subsidiary toof its Subsidiaries (such assets, consummate “Additional Assets”); provided further, that the Asset Sale Reinvestment Period shall be extended for up to an additional one hundred eighty (180) days in respect of any Asset Sale unless Reinvestment Amounts where the Credit Parties have, on or before the expiration of the initial Asset Sale Reinvestment Period, entered into a definitive agreement for the purchase or other acquisition of Additional Assets. In the event that the Asset Sale Reinvestment Amounts are not reinvested in accordance with the provisions above prior to the earliest of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time last day of such Asset Sale at least equal Reinvestment Period and (ii) the date of the occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale Reinvestment Amounts to the Fair Market Value Obligations as set forth in Section 2.11. Prior to entering into any Asset Sale of assets which constitute Term Loan Priority Collateral, the Credit Party Representative shall provide not less than three (3) Business Days’ prior written notice thereof and the Net Asset Sale Proceeds of such Assets shall be deposited into a deposit account subject to a Control Agreement whereby Administrative Agent has a First Priority security interest therein. If Administrative Agent does not receive prior written notice that Term Loan Priority Collateral is the subject of an Asset Sale, then the Credit Parties shall be deemed to have represented and warranted to Administrative Agent on the date such Asset Sale is consummated that none of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.constitute Term Loan Priority Collateral..

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Lifecore Biomedical, Inc. \De\)

Asset Sales. (a) The Company will not, and will not cause If the Borrower or permit any Restricted Subsidiary to, consummate shall at any time or from time to time make any Asset Sale unless or shall suffer an Event of Loss resulting in Net Available Cash in excess of $250,000,000 (ithe “Asset Sale Threshold”) in the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of aggregate for all such Asset Sale at least Sales or Events of Loss (other than as a result of proceeds pending investment or reinvestment pursuant the proviso hereto), the Borrower shall prepay the Loans in an aggregate amount equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75100% of the consideration paid amount of all such Net Available Cash in excess of the Asset Sale Threshold; provided that, in the case of each Asset Sale and Event of Loss, if the Borrower notifies the Administrative Agent within three (3) months of the applicable Asset Sale or receipt of Net Available Cash from an Event of Loss (the “Reinvestment Notice”) that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within three (3) months of the delivery of such Reinvestment Notice (the “Reinvestment Option Period”) the Net Available Cash thereof in any assets to be used by the Borrower or its Subsidiaries in its business (the “Reinvested Deferred Amount”), then the Borrower shall not be required to make a mandatory prepayment under this Section in respect of such Reinvested Deferred Amount to the Company extent such Reinvested Deferred Amount is actually invested or reinvested within such Restricted Subsidiary Reinvestment Option Period; provided, however, that (x) if a Reinvestment Notice is not delivered within three months of the applicable Asset Sale or Event of Loss, the Borrower shall promptly prepay the Loans in the amount of such Net Available Cash from such Asset Sale or such Event of Loss, and all other Asset Sales since (y) if any Reinvested Deferred Amount has not been so invested or reinvested prior to the Issue Dateexpiration of the Reinvestment Option Period, on a cumulative basis, is the Borrower shall promptly prepay the Loans in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for Reinvested Deferred Amount in excess of the amount specified above not so long as such liabilities remain outstanding unless such indemnifying party (invested or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implicationsreinvested; provided, in any casefurther, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) if, at the time that any such prepayment would be required hereunder, the indemnity Borrower is entered intorequired to redeem, repurchase, prepay or offer to repurchase any other Indebtedness secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with such Net Available Cash (such Indebtedness required to be prepaid or offered to be so repurchased, the “Other Applicable Indebtedness”), then the Borrower may apply such Net Available Cash on a pro rata basis to the prepayment of the Loans and to the redemption, repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) (“Permitted Consideration”) or (B) at such time; provided that the Fair Market Value of all forms portion of such consideration other than Permitted Consideration since Net Available Cash allocated to the Issue Date does Other Applicable Indebtedness shall not exceed in the aggregate 5% amount of such Net Available Cash required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, provided, further, that to the extent the holders of the Adjusted Consolidated Net Tangible Assets Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, the declined amount shall promptly be applied to prepay the Loans in accordance with the terms hereof. The amount of each such prepayment shall be applied to the Company determined at the time such Asset Sale is madeoutstanding Loans until paid in full.

Appears in 1 contract

Samples: Credit Agreement (Microchip Technology Inc)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary to, Subsidiaries to consummate any an Asset Sale unless (i) the Company (or such the Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value fair market value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date or Equity Interests issued or sold or otherwise disposed of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 7580% of the consideration paid to received therefor by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash; provided, Cash Equivalentsthat the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a any Restricted Subsidiary (other than contingent liabilities of the Company or a Restricted Subsidiary and liabilities that are by their terms subordinated to the NotesNotes or any guarantee thereof) as that are assumed by the transferee of any such assets pursuant to a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold customary novation agreement that releases the Company or such Restricted Subsidiary harmless from further liability and against (y) any losssecurities, liability notes or cost in respect of such assumed liabilities accompanied other obligations received by the posting of a letter of credit Company or any such Restricted Subsidiary from such transferee that are contemporaneously (issued subject to ordinary settlement periods) converted by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 270 days after receipt of any Net Proceeds from an Asset Sale, the full Company may apply such Net Proceeds, at its option, (a) to repay or cause to be repaid Senior Debt, or (b) to the acquisition of a majority of the assets of, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such Asset Sale that are not finally applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds --------------- exceeds $10.0 million, the Company shall be required to make an offer to all Holders of Notes (including Additional Notes) and all holders of pari passu Indebtedness containing provisions similar to those set forth in Section 3.09 hereof with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") to purchase a principal amount of Notes and ---------------- such other Indebtedness equal to the amount of such liabilities Excess Proceeds, at a purchase price equal to the amount in cash and for so long Common Stock payable by the Company pursuant to Section 3.07 as if such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication Notes were being redeemed by the Company on the date of a negative outlook or credit watch with negative implicationsthe applicable Asset Sale, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at accordance with the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed procedures set forth in Section 3.09 hereof and in the aggregate 5% documentation with respect to such other Indebtedness, respectively. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer (including that part of the Adjusted Consolidated Net Tangible Assets Excess Proceeds corresponding to the portion of the Company determined at the time purchase price payable in Common Stock under such Asset Sale is madeOffer), the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds allocable to the repurchase of the Notes (in relation to any other pari passu Indebtedness containing provisions similar to the provisions of Section 3.09 hereof), the Trustee shall select the Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. In determining the fair market value of any assets or Equity Interests issued, sold or otherwise disposed of, such determination shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee if such fair market value exceeds $15.0 million.

Appears in 1 contract

Samples: Timco Engine Center Inc

Asset Sales. (a) The Company will not, and will not cause No later than the third Business Day following the date of receipt by the Borrower or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale Proceeds of any Asset Sale unless (iother than the proceeds of any Disposition of all or substantially all of the assets of the Borrower and its Subsidiaries taken as a whole, which are governed by the “Change of Control” provisions of Section 8.01(k) and/or Section 7.04 hereof), the Company or such Restricted Subsidiary, Borrower shall prepay the Loans as the case may be, receives consideration at the time of such Asset Sale at least set forth in Section 2.05(b)(viii) below in an aggregate amount equal to the Fair Market Value Applicable Asset Sale Percentage of such Net Asset Sale Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, no such prepayment shall be required upon the receipt of any Net Asset Sale Proceeds equal to or less than the Permitted Reinvestment Amount if, within 365 days after the receipt thereof, the Borrower (at its option and either directly or through one or more of its Subsidiaries) applies such Net Sale Asset Proceeds to (1) acquire all or substantially all of the assets and property subject of, or a majority of the voting Equity Interests of, a Permitted Business, (2) make a capital expenditure in a Permitted Business or (3) acquire other long-term assets that are used or useful in a Permitted Business. If any Net Asset Sale Proceeds other than the Applicable Asset Sale Percentage thereof is not paid to other Senior Lenders pursuant to provisions requiring the mandatory prepayment, or mandatory offer to repurchase or redeem, Indebtedness owed to such Senior Lenders, then (unless such proceeds are reinvested in accordance with the proviso in the immediately preceding sentence) the Borrower shall prepay the Loans as set forth in Section 2.05(b)(viii) below in an aggregate amount equal to the Remaining Asset Sale (such Fair Market Value to be determined on Proceeds no later than the third Business Day following the date on which it is determined that the Borrower or any of contractually agreeing its Subsidiaries is not required to effect such Asset Sale) and (ii) (A) at least 75% prepay, purchase or redeem any portion of the consideration paid to the Company or Indebtedness held by such Restricted Subsidiary from Senior Lenders with such Net Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeProceeds.

Appears in 1 contract

Samples: Term Loan Agreement (Parker Drilling Co /De/)

Asset Sales. (a) The Company will not, and will not cause or permit No later than the tenth Business Day following the date of actual receipt by any Restricted Subsidiary to, consummate Credit Party of any Net Asset Sale unless Proceeds in excess of $500,000 in the aggregate at any time following the Closing Date, Borrower shall prepay the Loans and/or the applicable Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Default or Event of Default shall have occurred and be continuing, upon delivery of a written notice to Administrative Agent, Borrower shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in long-term productive assets of the general type used in the business of Borrower if such assets are purchased or constructed within 180 days following actual receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $500,000 or more has been consented to by Administrative Agent and Required Lenders); provided further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall, at the option of Borrower, be applied to prepay Revolving Loans to the extent then outstanding (without a reduction in Revolving Commitments) and, to the extent such Asset Sale Reinvestment Amounts exceed the amount required to prepay all such Revolving Loans, the balance thereof shall be held at all times prior to such reinvestment, in an escrow account in form and substance reasonably acceptable to Administrative Agent. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Borrower prior to the earlier of (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time last day of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale 180 day period (such Fair Market Value or, if committed to be determined on the date of contractually agreeing to effect such Asset Sale) so reinvested, within 365 days after actual receipt thereof), and (ii) (A) at least 75% the date of the consideration paid to the Company or such Restricted Subsidiary from occurrence of an Event of Default, Administrative Agent shall apply such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated Reinvestment Amounts to the Notes) Obligations as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or set forth in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeSection 2.15(b).

Appears in 1 contract

Samples: Lease Agreement (GPB Holdings II, LP)

Asset Sales. The Borrowers covenant and agree that all proceeds derived from the sale or disposition (awhether voluntary or involuntary), or on account of damage or destruction, of Collateral consisting of real estate, furniture, fixtures, equipment or other fixed assets of the Borrowers shall be paid over to the Bank as and for a mandatory prepayment on the Term Note; provided that if at the time of receipt no amount is outstanding under the Term Note or the amount received is in excess of the amount necessary to prepay the Term Note in full, then such prepayment or excess (as appropriate) The Company will notshall be applied to the Revolving Note (or held by the Bank as collateral security for the Borrowers’ Obligations under the Applications if the Revolving Loans have been prepaid in full but Letters of Credit remain outstanding), subject to the Borrowers’ right to reborrow amounts so applied against the Revolving Credit in accordance with the terms and will not cause or permit any Restricted Subsidiary toconditions hereof; provided, consummate any Asset Sale unless however, that (i) the Company or such Restricted Subsidiary, foregoing provision shall be inapplicable to proceeds received by the Bank under the Collateral Documents if and so long as the case may beBorrowers have, receives consideration at the time of such Asset Sale at least equal pursuant to the Fair Market Value Collateral Documents, requested that the same be held by the Bank and disbursed for the restoration, repair or replacement of the assets and property subject to in respect of which such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) proceeds were received and (ii) no prepayment shall be required with respect to up to $100,000 of net proceeds (Ai.e., gross proceeds net of out-of-pocket expenses incurred in effecting the sale or other disposition) at least 75% received in any calendar year from the sale or other disposition of personal property Collateral which is worn out, obsolete or, in the good faith judgment of the consideration paid Borrowers, no longer necessary to the Company or efficient conduct of its business as then conducted. Any such Restricted Subsidiary from such Asset Sale and all other Asset Sales since prepayment applied to the Issue Date, on a cumulative basis, is outstanding principal balance of the Term Note shall be applied to the several installments thereof in the form inverse order of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including its maturity. Any prepayment of the Term Note made pursuant to Asset Swapsthis Section 3.7(c) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated shall not be subject to the Notes) as a result prepayment premium contained in Section 3.4 of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madethis Agreement.

Appears in 1 contract

Samples: Credit Agreement (Hyco International, Inc.)

Asset Sales. (a) The Company will not, and will not cause No later than the third Business Day following the date of receipt by Holdings or permit any Restricted Subsidiary to, consummate of its Subsidiaries of any Net Asset Sale unless Proceeds, Borrower shall prepay the Loans and/or the Revolving Loans as set forth in Section 2.15(b) in an aggregate amount equal to 100% of such Net Asset Sale Proceeds; provided, that if, as of the last day of the most recently ended Fiscal Quarter (which for the first quarter after the Closing Date, shall be the first full quarter thereafter rather than a stub period), the Senior Secured Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 5.1(d) calculating the Senior Secured Leverage Ratio as of the last day of such Fiscal Quarter) shall be 2.50:1.00 or less, such percentage of Net Asset Sale Proceeds (other than Net Asset Sale Proceeds from the Potential ATS Sale) required to be prepaid hereunder shall be reduced to 50%; provided, (i) the Company or such Restricted Subsidiaryso long as no Default under Sections 8.1(a), as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Salef) and (iig) or Event of Default shall have occurred and be continuing, Borrower shall have the option, directly or through one or more of its Subsidiaries, in lieu of prepayment, (1) to invest such Net Asset Sale Proceeds within twelve months of receipt thereof or (2) to commit to invest such Net Asset Sale Proceeds within such twelve-month period provided such Net Asset Sale Proceeds are actually reinvested within eighteen months of receipt thereof in other productive assets of the general type used or useful in the business of Borrower and its Subsidiaries. Notwithstanding the foregoing, (A) at least 75% there shall be no prepayment requirement with respect to the Potential Radar Sale to the extent the Potential Radar Sale is consummated within one year of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale Closing Date and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms Net Asset Sale Proceeds from the Potential ATS Sale shall be repaid as follows: (x) 100% of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is madeProceeds shall be used to prepay the Loans and/or the Revolving Loans as set forth in Section 2.15(b) and (y) to the extent any Lender exercises its rights under Section 2.15(c) and waives such mandatory prepayment, the Borrower may use such remaining Net Asset Sale Proceeds (i) to prepay the Senior Unsecured Indebtedness, (ii) to reinvest in accordance with the timeframes set forth in this Section 2.14(a) or (iii) for Investments permitted pursuant to Section 6.6.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Aeroflex Inc)

Asset Sales. In the event of any sale, transfer, lease or other disposition of any assets or all or any material portion of any System (awhether singly or in a series of related transactions) The Company will nothereunder (excluding such sales, leases, transfers and will not cause or permit any Restricted Subsidiary toother disposition of assets in the ordinary course of business and Exchanges), consummate any Asset Sale unless (i) the Company or such Restricted SubsidiaryBorrower shall, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing such sale, lease, transfer or other disposition, make a repayment of the principal of the Loans equal to effect the Net Proceeds of such Asset Sale) sale, lease, transfer or other disposition; provided, however, that the Borrower shall not be required to make a repayment hereunder with respect to any such sale, lease, transfer and (ii) other disposition, (A) at least 75% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result aggregate Net Proceeds of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liabilitydo not exceed $10,000,000, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed liabilities accompanied by the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) in favor of the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value Net Proceeds of all forms which are used by the Borrower or its Restricted Subsidiaries within twelve (12) months from the receipt thereof by the Borrower or any of such consideration other than Permitted Consideration since its Restricted Subsidiaries in connection with an Acquisition in accordance with Section 7.5(b) hereof, the Issue Date does not exceed purchase of similar assets or which are used in a manner consented to by the aggregate 5% Majority Lenders. Any repayment hereunder shall be applied pro rata to the amount of the Adjusted Consolidated Net Tangible Assets Facility A Loans, Facility B Term Loans and, unless otherwise agreed by the Incremental Facility Lenders, the Incremental Facility Loans then outstanding. Any repayment of the Company determined at Facility A Loans outstanding shall be applied pro rata to the time Revolving Loans and the Facility A Term Loans then outstanding. Amounts applied to the Facility A Term Loans, the Facility B Term Loans and, unless otherwise agreed by the Incremental Facility Lenders, the Incremental Facility Loans shall be applied to the remaining payments under Section 2.7(a), Section 2.7(b) and as set forth in any Notice of Incremental Facility Commitment, respectively, on a pro rata basis. Amounts applied to the Revolving Loans hereunder shall permanently reduce the Revolving Loan Commitment on a dollar for dollar basis, with such Asset Sale is madereduction applied pro rata to the remaining reductions under Section 2.5 (b) hereof.

Appears in 1 contract

Samples: Pledge Agreement (Bresnan Capital Corp)

Asset Sales. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, consummate any an Asset Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be, ) receives consideration at the time of such Asset Sale (if other than a Casualty Event) at least equal to the Fair Market Value (taking into account the value of all consideration received in connection therewith and set forth in an Officers' Certificate delivered to the Trustee) of the assets and property Property or Equity Interests that are the subject to such Asset Sale (such Fair Market Value to be determined on the date of contractually agreeing to effect such Asset Sale) and , (ii) (A) at least 7580% of the consideration paid to the Company or such Restricted Subsidiary from such Asset Sale and all therefor (if other Asset Sales since the Issue Date, on than a cumulative basis, Casualty Event) is in the form of cash, Qualified Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to Asset Swapsiii) or the assumption Net Cash Proceeds received by the acquiring Person Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale shall be remitted, subject to any Intercreditor Agreement, to the Trustee for deposit into the Asset Sale Proceeds Account free of Indebtedness or other liabilities of the Company or a Restricted Subsidiary any Lien (other than liabilities the Liens of the Company or a Restricted Subsidiary that are by their terms subordinated to the NotesSecurity Documents and any Working Capital Facility), and (iv) as a result of which the Company and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu of such absence of liability, the acquiring Person or its parent company agrees to indemnify and hold the Company or such Restricted Subsidiary harmless Subsidiary, as the case may be) shall take such action as shall be necessary under 6.03 hereof in order to maintain the Lien of the Trustee on any other consideration received in such Asset Sale. The Net Cash Proceeds from such Asset Sale shall be retained in the Asset Sale Proceeds Account and against shall be available pursuant to Sections 9.03 and 9.04 hereof (x) in the case of Net Cash Proceeds of a Casualty Event, to be applied to the repair, rebuilding or replacement of the Property subject to such Casualty Event and (y) in the case of any loss, liability or cost in respect other Net Cash Proceeds of such assumed liabilities accompanied Asset Sale, to the reinvestment into Property that is used or useful in a Permitted Business, provided that to the extent all of the Net Cash Proceeds have not been so applied to such repair, rebuilding, replacement or reinvestment within 365 days following the receipt of such Net Cash Proceeds (or within such shorter period as shall be specified by the posting Company), such remaining Net Cash Proceeds shall be applied to the making of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Asset Sale Offer as provided in favor the next-following paragraph. The aggregate amount of the Company Net Cash Proceeds remaining at the end of such period after the application of such Net Cash Indenture Proceeds to the repair, rebuilding, replacement or such Restricted Subsidiary for reinvestment referred to therein, shall constitute "Excess Proceeds." When the full aggregate amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party Excess Proceeds equals or exceeds $10,000,000, the Issuer will be required to make an offer to all Holders (or its long term debt securitiesan "Asset Sale Offer") shall have to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at a purchase price in cash in an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing amount equal to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5100% of the Adjusted Consolidated Net Tangible Assets principal amount thereof, plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the Company determined at procedures set forth in Article III hereof. To the time extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale is madeOffer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero for purposes of the first sentence of this paragraph.

Appears in 1 contract

Samples: Intercreditor Agreement (Global Crossing LTD)

Asset Sales. Not later than three (a3) The Company will not, and will not cause or permit Business Days following the receipt of any Restricted Subsidiary to, consummate Net Cash Proceeds of any Asset Sale unless (i) by the Designated Company or any of its Restricted Subsidiaries, the applicable Co-Borrowers shall make prepayments of the Term Loans in accordance with Section 2.10(g) and (h) in an aggregate amount equal to 100% of such Restricted SubsidiaryNet Cash Proceeds; provided, as the case may be, receives consideration that if at the time of that any such prepayment would be required, such Co-Borrower is required to prepay or offer to repurchase (x) Permitted Short Term Indebtedness, solely to the extent that such Asset Sale at least equal constitutes a Specified Divestiture, (y) Permitted First Priority Refinancing Debt, or (z) any Additional Senior Secured Indebtedness that is secured on a pari passu basis with the Secured Obligations pursuant to the Fair Market Value terms of the assets and property subject to documentation governing such Indebtedness, in the case of clauses (x) through (z), with the Net Cash Proceeds of such Asset Sale (such Fair Market Value Permitted Short Term Indebtedness, Permitted First Priority Refinancing Debt or Additional Senior Secured Indebtedness required to be prepaid or offered to be so repurchased, “Other Applicable Indebtedness”), then such Co-Borrower shall apply such Net Cash Proceeds on a pro rata basis (determined on the date of contractually agreeing to effect such Asset Sale) and (ii) (A) at least 75% basis of the consideration paid aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, that the portion of such net proceeds allocated to the Company or Other Applicable Indebtedness shall not exceed the amount of such Restricted Subsidiary from such Asset Sale and all other Asset Sales since Net Cash Proceeds required to be allocated to the Issue Date, on a cumulative basis, is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including Other Applicable Indebtedness pursuant to Asset Swaps) or the assumption by the acquiring Person of Indebtedness or other liabilities of the Company or a Restricted Subsidiary (other than liabilities of the Company or a Restricted Subsidiary that are by their terms subordinated to the Notes) as a result of which the Company thereof, and the remaining Restricted Subsidiaries are no longer liable for such liabilities (or in lieu amount, if any, of such absence Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of liabilitythe Term Loans and to the prepayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.10(c) shall be reduced accordingly; provided further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid or repurchased, the acquiring Person or its parent company agrees to indemnify declined amount shall promptly (and hold in any event within 10 Business 115 Days after the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect date of such assumed liabilities accompanied by rejection) be applied to prepay the posting of a letter of credit (issued by a commercial bank that has an Investment Grade Rating) Term Loans in favor of accordance with the Company or such Restricted Subsidiary for the full amount of such liabilities and for so long as such liabilities remain outstanding unless such indemnifying party (or its long term debt securities) shall have an Investment Grade Rating (with no indication of a negative outlook or credit watch with negative implications, in any case, that contemplates such indemnifying party (or its long term debt securities) failing to have an Investment Grade Rating) at the time the indemnity is entered into) (“Permitted Consideration”) or (B) the Fair Market Value of all forms of such consideration other than Permitted Consideration since the Issue Date does not exceed in the aggregate 5% of the Adjusted Consolidated Net Tangible Assets of the Company determined at the time such Asset Sale is made.terms hereof; provided further that:

Appears in 1 contract

Samples: Credit Agreement (Novelis Inc.)

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