Valuation Methodology. (i) The purchase price of the Percentage Interests of RHB shall be determined by mutual agreement between SCC and RHB or, if such Parties cannot agree, by an independent valuation performed by a mutually-selected, nationally recognized investment banking firm or certified public accounting firm (“Independent Financial Expert A”). Upon completion of its assignment, Independent Financial Expert A shall notify the Parties in writing of Independent Financial Expert A’s determination of the value of RHB’s Percentage Interest. Within five business days after receiving written notice by Independent Financial Expert A, either Party may object to the valuation. Such objecting Party shall evidence their objection by written notice (“Notice of Objection”) sent to the other Party within the five business day period. If a Party sends such Notice of Objection to the other Party then, within ten business days of the other Party’s receiving such notice, SCC and RHB shall each designate a separate, nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Experts B and C”). Within 15 business days after being selected, Independent Financial Experts B and C shall mutually-select a third nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Expert D”) that shall prepare a final and binding determination of the value of RHB’s Percentage Interest. The costs of Independent Financial Experts A, C and D shall be paid for by SCC, and the cost of Independent Financial Expert B shall be paid for by RHB. (ii) Regardless of the determination of value of RHB’s Percentage Interest by any of the methods described in Article 8.8 (b) (i) above, the minimum aggregate value of RHB’s Percentage Interest shall not be less than the greater of one of the following, pro rata to RHB’s Percentage Interest: (A) five times the average of the Company’s EBITDA for the previous three fiscal years or (B) five times the Company’s total EBITDA for the trailing twelve months prior to the transaction close date. (iii) Once the value has been determined by one of the methods described in Article 8.8 (b) (i) and (ii) above, any undistributed net taxable income attributable to RHB’s Percentage Interests must be added to that value to determine the purchase price. In addition to the purchase price, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will be entitled to an Earn-out bonus equal to 50% of the net profits of all projects listed in the Company’s backlog, plus projects where the company was the apparent low bidder but the project was not yet listed in backlog, as of the transaction close date. Net profit will be determined based on audited gross margin on each project minus an allocated overhead charge commensurate with the Company’s annual average overhead percentage of Revenue. Such net profits will be due and payable only for as long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains continuously employed by the Company and only after each listed project is closed out and audited.
Appears in 1 contract
Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (ithe “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows:
(1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The purchase price “Current Market Price” of a Marketable Security shall be deemed to be the average of the Percentage Interests daily closing prices of RHB shall be determined by mutual agreement between SCC and RHB such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Parties Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent or applicable court order for the distribution of such Non-Cash Property.
(2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot agreebe determined pursuant to clause (1) above), by an independent valuation performed by the Collateral Agent (acting upon instructions from the Directing Creditors) shall (at the Company’s sole expense) promptly, but in any case within 30 days of receipt of a mutually-selected, notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment banking firm or certified public accounting firm bank (an “Independent Financial Expert AExpert”). Upon completion ) with ex- perience in similar transactions (for instance, transactions of its assignment, Independent Financial Expert A shall notify a comparable size and magnitude) to determine the Parties in writing of Independent Financial Expert A’s determination Fair Market Value of the value of RHB’s Percentage Interest. Within five business days after receiving written notice by Independent Financial Expert ANon-Cash Property to be distributed, either Party may object to the valuation. Such objecting Party shall evidence their objection by written notice (“Notice of Objection”) sent to the other Party within the five business day period. If a Party sends such Notice of Objection to the other Party then, within ten business days of the other Party’s receiving such notice, SCC and RHB shall each designate a separate, nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Experts B and C”). Within 15 business days after being selected, Independent Financial Experts B and C shall mutually-select a third nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Expert D”) that shall prepare a final and binding determination of the value of RHB’s Percentage Interest. The costs of Independent Financial Experts A, C and D shall be paid for by SCC, and the cost of Independent Financial Expert B shall be paid for by RHB.
(ii) Regardless of the determination of value of RHB’s Percentage Interest by any of the methods described in Article 8.8 (b) (i) above, the minimum aggregate value of RHB’s Percentage Interest shall not be less than the greater of one of the following, pro rata to RHB’s Percentage Interest: (A) five times the average of the Company’s EBITDA for the previous three fiscal years or (B) five times the Company’s total EBITDA for the trailing twelve months prior to the transaction close date.
(iii) Once the value has been determined by one of the methods described in Article 8.8 (b) (i) and (ii) abovecause the Independent Financial Expert so appointed by it, any undistributed net taxable income attributable to RHB’s Percentage Interests must be added prepare and to that value to determine the purchase price. In addition deliver to the purchase priceCollateral Agent a written report (a “Value Report”) specifying such Fair Market Value.
(3) The Company shall provide, ▇▇▇▇▇▇▇ ▇and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. ▇▇▇▇▇▇▇▇ will The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be entitled complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to an Earn-out bonus equal to 50% of reasonably cooperate, fully with the net profits of all projects listed Independent Financial Expert in the Company’s backlogconduct of its valuation, plus projects where including making management reasonably available and offering access to the company was the apparent low bidder but the project was not yet listed in backlog, as premises of the transaction close date. Net profit will be determined based on audited gross margin on each project minus an allocated overhead charge commensurate with the Company’s annual average overhead percentage of Revenue. Such net profits will be due and payable only for as long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains continuously employed by the Company and only after each listed project is closed out its subsidiaries to the Independent Financial Expert during regular business hours and auditedon reasonable notice.
Appears in 1 contract
Sources: Intercreditor and Collateral Agency Agreement (Dominion Textile (Usa), L.L.C.)
Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (ithe “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows.
(1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The purchase price “Current Market Price” of a Marketable Security shall be deemed to be the average of the Percentage Interests daily closing prices of RHB shall be determined by mutual agreement between SCC and RHB such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Parties Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property.
(2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot agreebe determined pursuant to clause (1) above), by an independent valuation performed by each of (a) the Series A-1 Noteholders and the Additional Secured Debt Holders representing a mutually-selectedmajority of the then outstanding Aggregate Voting Credit with respect to the Series A-1 Notes and the Additional Secured Debt on the one hand and (b) the Series A-2 Creditors representing a majority of the then outstanding Aggregate Voting Credit with respect to the Series A-2 Debt on the other hand (for purposes of this Section 4.05(g), such Series A-1 Noteholders and the Additional Secured Debt Holders on the one hand and such Series A-2 Creditors on the other hand shall be referred to as “One Party” and the “Other Party” and vice versa, and together they shall be referred to as the “Parties” and each one of them a “Party”), shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment banking firm or certified public accounting firm bank (an “Independent Financial Expert AExpert”). Upon completion ) with experience in similar transactions (for instance, transactions of its assignmenta comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause the Independent Financial Expert A shall notify so appointed by it, to prepare and to deliver to the Parties in writing of Collateral Agent and the Other Party a written report (a “Value Report”) specifying such Fair Market Value.
(3) Should One Party fail to appoint an Independent Financial Expert A’s determination of or the value of RHB’s Percentage Interest. Within five business days after receiving written notice by Independent Financial Expert A, either Party may object to the valuation. Such objecting selected by such Party shall evidence their objection by written notice (“Notice of Objection”) sent fail to the other Party deliver its Value Report within the five business day period. If a Party sends such Notice of Objection to time period specified above, then the other Party then, within ten business days of the other Party’s receiving such notice, SCC and RHB shall each designate a separate, nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Experts B and C”). Within 15 business days after being selected, Independent Financial Experts B and C shall mutually-select a third nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Expert D”) that appointed by the Other Party shall prepare a final and binding determination alone determine the Fair Market Value of the value of RHB’s Percentage Interest. The costs of Independent Financial Experts ANon-Cash Property to be distributed, C and D which determination shall be paid conclusive for all purposes hereof.
(4) If the two Value Reports delivered by SCC, and the cost of each Independent Financial Expert B shall be paid for by RHB.
(ii) Regardless of provide Fair Market Values such that the determination of value of RHB’s Percentage Interest by any of the methods described in Article 8.8 (b) (i) above, the minimum aggregate value of RHB’s Percentage Interest shall higher one is not be less more than 25% greater than the greater of one of the followinglower one, pro rata to RHB’s Percentage Interest: (A) five times the average of the Company’s EBITDA two values will be taken as the Fair Market Value of the Non-Cash Property to be distributed, which average shall be conclusive for the previous three fiscal years or (B) five times the Company’s total EBITDA for the trailing twelve months prior to the transaction close dateall purposes of establishing such Fair Market Value hereunder.
(iii5) Once If the value valuations specified in the two Value Reports differ by more than 25%, the Parties will jointly appoint an additional Independent Financial Expert (the “Third Independent Financial Expert”) to perform a third valuation and prepare a third Value Report (the “Third Value Report”). If the Parties are unable to promptly agree on the selection of the Third Independent Financial Expert, a body agreed to by both Parties or, absent such agreement, American Arbitration Association will be requested by the Collateral Agent to appoint the Third Independent Financial Expert to perform and deliver the Third Value Report, such Third Value Report to be delivered to the Collateral Agent and the Parties within 60 days of its appointment. The Third Independent Financial Expert may not be an investment bank that has performed significant work for the Company, its affiliates or any of the persons constituting Parties during the immediately preceding one year. The Third Independent Financial Expert shall not be appraised by either Party or the Collateral Agent of the two initial valuations prior to delivery of its own Value Report.
(6) If the Third Value Report has been determined by one delivered, the Fair Market Value of the methods described in Article 8.8 (b) Non-Cash Property to be distributed, will be equal to (i) and if the Fair Market Value specified in the Third Value Report is in between the valuations specified on the two initial Value Reports, an amount equal to the average of the two valuations that are closest in amount, (ii) aboveif the Fair Market Value specified in the Third Value is equal to or greater than the highest of the two valuations specified in the two initial Value Reports, any undistributed net taxable income attributable to RHB’s Percentage Interests must be added to that value to determine the purchase price. In addition an amount equal to the purchase price, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will be entitled to an Earn-out bonus highest of such two initial valuations and (iii) if the Fair Market Value specified in the Third Value is equal to 50% or lower than the lowest of the net profits of all projects listed two valuations specified in the Company’s backlogtwo initial Value Reports, plus projects where an amount equal to the company was lower of such two initial valuations.
(7) The Company shall provide, and shall cause its subsidiaries to provide, all Independent Financial Experts with the apparent low bidder but same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the project was not yet listed information shall be complete and accurate in backlog, as of the transaction close date. Net profit will all material respects and that any forecasts shall be determined based on audited gross margin on each project minus an allocated overhead charge commensurate unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with all Independent Financial Experts in the Company’s annual average overhead percentage conduct of Revenue. Such net profits will be due their valuation, including making management reasonably available and payable only for as long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains continuously employed by offering access to the premises of the Company and only after each listed project is closed out its subsidiaries to the Independent Financial Experts during regular business hours and auditedon reasonable notice.
Appears in 1 contract
Sources: Intercreditor and Collateral Agency Agreement (Apria Healthcare Group Inc)
Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (ithe “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows.
(1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The purchase price “Current Market Price” of a Marketable Security shall be deemed to be the average of the Percentage Interests daily closing prices of RHB shall be determined by mutual agreement between SCC and RHB such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Parties Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property.
(2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot agreebe determined pursuant to clause (1) above), by an independent valuation performed by the Noteholders, the Additional Senior Secured Debt Holders and the Swap Creditors representing a mutually-selectedmajority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment banking firm or certified public accounting firm bank (an “Independent Financial Expert AExpert”). Upon completion ) with experience in similar transactions (for instance, transactions of its assignment, Independent Financial Expert A shall notify a comparable size and magnitude) to determine the Parties in writing of Independent Financial Expert A’s determination Fair Market Value of the value of RHB’s Percentage Interest. Within five business days after receiving written notice by Independent Financial Expert ANon-Cash Property to be distributed, either Party may object to the valuation. Such objecting Party shall evidence their objection by written notice (“Notice of Objection”) sent to the other Party within the five business day period. If a Party sends such Notice of Objection to the other Party then, within ten business days of the other Party’s receiving such notice, SCC and RHB shall each designate a separate, nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Experts B and C”). Within 15 business days after being selected, Independent Financial Experts B and C shall mutually-select a third nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Expert D”) that shall prepare a final and binding determination of the value of RHB’s Percentage Interest. The costs of Independent Financial Experts A, C and D shall be paid for by SCC, and the cost of Independent Financial Expert B shall be paid for by RHB.
(ii) Regardless of the determination of value of RHB’s Percentage Interest by any of the methods described in Article 8.8 (b) (i) above, the minimum aggregate value of RHB’s Percentage Interest shall not be less than the greater of one of the following, pro rata to RHB’s Percentage Interest: (A) five times the average of the Company’s EBITDA for the previous three fiscal years or (B) five times the Company’s total EBITDA for the trailing twelve months prior to the transaction close date.
(iii) Once the value has been determined by one of the methods described in Article 8.8 (b) (i) and (ii) abovecause the Independent Financial Expert so appointed by it, any undistributed net taxable income attributable to RHB’s Percentage Interests must be added prepare and to that value to determine the purchase price. In addition deliver to the purchase priceCollateral Agent a written report (a “Value Report”) specifying such Fair Market Value.
(3) The Company shall provide, ▇▇▇▇▇▇▇ ▇and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. ▇▇▇▇▇▇▇▇ will The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be entitled complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to an Earn-out bonus equal reasonably cooperate, fully with the Independent Financial Expert in the conduct of its valuation, including making management reasonably available and offering access to 50% the premises of the net profits Company and its subsidiaries to the Independent Financial Expert during regular business hours and on reasonable notice.
(4) “Fair Market Value” of all projects listed in the Company’s backlog, plus projects where the company was the apparent low bidder but the project was not yet listed in backlogNon-Cash Property to be distributed, as of the transaction close datedate of determination, shall mean the price that a willing buyer would pay to a willing seller for the relevant Non-Cash Property, in an arm’s length transaction, with neither party being under any immediate obligation or need to consummate such transaction. Net profit will The Fair Market Value shall be determined based on audited gross margin on each project minus an allocated overhead charge commensurate with the Company’s annual average overhead percentage of Revenue. Such net profits will be due and payable only for as long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains continuously employed by the Company and only after each listed project is closed out and auditedstated in U.S. dollars.
Appears in 1 contract
Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (ithe “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows.
(1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The purchase price “Current Market Price” of a Marketable Security shall be deemed to be the average of the Percentage Interests daily closing prices of RHB shall be determined by mutual agreement between SCC and RHB such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Parties Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property.
(2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot agreebe determined pursuant to clause (1) above), by an independent valuation performed by the Noteholders, the Additional Senior Secured Debt Holders and the Swap Creditors representing a mutually-selectedmajority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment banking firm or certified public accounting firm bank (an “Independent Financial Expert AExpert”). Upon completion ) with experience in similar transactions (for instance, transactions of its assignment, Independent Financial Expert A shall notify a comparable size and magnitude) to determine the Parties in writing of Independent Financial Expert A’s determination Fair Market Value of the value of RHB’s Percentage Interest. Within five business days after receiving written notice by Independent Financial Expert ANon-Cash Property to be distributed, either Party may object to the valuation. Such objecting Party shall evidence their objection by written notice (“Notice of Objection”) sent to the other Party within the five business day period. If a Party sends such Notice of Objection to the other Party then, within ten business days of the other Party’s receiving such notice, SCC and RHB shall each designate a separate, nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Experts B and C”). Within 15 business days after being selected, Independent Financial Experts B and C shall mutually-select a third nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Expert D”) that shall prepare a final and binding determination of the value of RHB’s Percentage Interest. The costs of Independent Financial Experts A, C and D shall be paid for by SCC, and the cost of Independent Financial Expert B shall be paid for by RHB.
(ii) Regardless of the determination of value of RHB’s Percentage Interest by any of the methods described in Article 8.8 (b) (i) above, the minimum aggregate value of RHB’s Percentage Interest shall not be less than the greater of one of the following, pro rata to RHB’s Percentage Interest: (A) five times the average of the Company’s EBITDA for the previous three fiscal years or (B) five times the Company’s total EBITDA for the trailing twelve months prior to the transaction close date.
(iii) Once the value has been determined by one of the methods described in Article 8.8 (b) (i) and (ii) abovecause the Independent Financial Expert so appointed by it, any undistributed net taxable income attributable to RHB’s Percentage Interests must be added prepare and to that value to determine the purchase price. In addition deliver to the purchase priceCollateral Agent a written report (a “Value Report”) specifying such Fair Market Value.
(3) The Company shall provide, ▇▇▇▇▇▇▇ ▇and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. ▇▇▇▇▇▇▇▇ will The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be entitled complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to an Earn-out bonus equal to 50% of reasonably cooperate, fully with the net profits of all projects listed Independent Financial Expert in the Company’s backlogconduct of its valuation, plus projects where including making management reasonably available and offering access to the company was the apparent low bidder but the project was not yet listed in backlog, as premises of the transaction close date. Net profit will be determined based on audited gross margin on each project minus an allocated overhead charge commensurate with the Company’s annual average overhead percentage of Revenue. Such net profits will be due and payable only for as long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains continuously employed by the Company and only after each listed project is closed out its subsidiaries to the Independent Financial Expert during regular business hours and auditedon reasonable notice.
Appears in 1 contract
Sources: Intercreditor and Collateral Agency Agreement (Am-Pac Tire Dist. Inc.)