Asset Disposition. Upon the receipt of any Net Proceeds of (x) any Asset Disposition in excess of $75,000,000 in the aggregate with all other Asset Dispositions made after the Closing Date or (y) Casualty Event (including by the Administrative Agent as loss payee in respect of any Casualty Event) (such Net Proceeds, “Excess Proceeds”), the Borrowers or the applicable Restricted Subsidiary, at their option, shall apply cash in an amount equal to the Excess Proceeds from such Asset Disposition or Casualty Event either: (I) if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, within five Business Days after receipt of such Excess Proceeds to (x) prepay Term B Loans in an aggregate amount equal to 100% of the amount of such Excess Proceeds or (y) to make an offer to purchase, prepay or permanently reduce Indebtedness permitted by Section 6.01 that is secured on a pari passu basis (without regard to control of remedies) with the Liens securing the Obligations (or, in each case, any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis (without regard to control of remedies) with Liens securing the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Excess Proceeds from such Asset Disposition or Casualty Event (such Indebtedness permitted by Section 6.01 that is incurred after the Closing Date or, in each case, any Refinancing Indebtedness in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control of remedies) with the Obligations (“Other Applicable Indebtedness”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (I)(y), (1) such Borrower or such Restricted Subsidiary shall permanently retire that portion of such Indebtedness so repaid or prepaid and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to a Borrower or a Restricted Subsidiary) and (2) such Borrower or such Restricted Subsidiary will equally and ratably reduce the amount of Indebtedness outstanding under this Agreement by prepaying Loans in accordance with Section 2.09(c), or (II) if the assets subject to the respective Asset Disposition or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement (but without any corresponding permanent reductions of the commitments thereunder); (B) so long as the Borrowers deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Borrowers intend to cause the Excess Proceeds from such event (or a portion thereof specified in such certificate, in which case the remaining portion shall be applied pursuant to clause (A)) to be applied within 18 months after receipt of such Excess Proceeds to acquire Additional Assets to be used in the business of the Borrowers or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, to acquire Additional Assets; provided, however, that, if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, any such Additional Assets so acquired shall constitute TL Priority Collateral and concurrently with their acquisition shall be added to the 72 Collateral securing the Secured Obligations in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents; provided, further, that to the extent such Additional Assets constitute the Capital Stock of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Section 5.11, the assets of such Person that may be used or useful in a Related Business are, in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations. Notwithstanding the foregoing, for purposes of clause (B), if during such 18-month period a Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Excess Proceeds of any Asset Disposition or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.09(b) then, so long as (i) no Event of Default then exists and (ii) such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 18 months to complete, then such 18-month period will be extended with respect to the amount of Excess Proceeds so committed for the period of time necessary to complete such project (or, if earlier, the date of termination of such agreement); or (C) a combination of clauses (A) and (B), subject to the requirements thereunder,
Appears in 1 contract
Asset Disposition. Upon the receipt Not, and not permit any other Loan Party to, sell, lease, transfer, or otherwise dispose of any assets of the Borrower or any other Loan Party except (a) transfers of assets to any of the Loan Parties, (b) Asset Dispositions of Inventory of any of the Loan Parties and Fixed Assets of any of the Loan Parties (in each case subject to clause (d) of this Section 11.8) sold in the ordinary course of business, (c) obsolete or worn out equipment and (d) subject to the following sentence, Asset Dispositions to the extent the aggregate Net Cash Proceeds of such Asset Dispositions does not exceed, in any such Fiscal Year, 20% of the Tangible Assets of the Borrower and the other Loan Parties, as of the end of the immediately preceding Fiscal Year, and to the extent 100% of the consideration for such Asset Dispositions is in cash; provided that, to the extent otherwise meeting the requirements of this clause (xd): (1) any Net Cash Proceeds from Asset Dispositions which in the event that the assets subject to such Asset Disposition constituted Collateral, such Net Cash Proceeds are reinvested in excess property, all or substantially all (as determined by the Collateral Agent) of $75,000,000 which such property shall be made subject to the Lien of the applicable Collateral Documents in favor of the Collateral Agent or (2) in the aggregate with all other event that the assets subject to such Asset Dispositions made after the Closing Date or (y) Casualty Event (including by the Administrative Agent as loss payee in respect of any Casualty Event) (Disposition did not constitute Collateral, such Net Proceeds, “Excess Proceeds”), the Borrowers or the applicable Restricted Subsidiary, at their option, shall apply cash Cash Proceeds are reinvested in an amount equal assets similar to the Excess Proceeds from assets which were subject to such Asset Disposition or Casualty Event either:
(I) if the assets subject to the respective Asset Disposition in property which is otherwise used or Casualty Event constituted TL Priority Collateral, within five Business Days after receipt of such Excess Proceeds to (x) prepay Term B Loans in an aggregate amount equal to 100% of the amount of such Excess Proceeds or (y) to make an offer to purchase, prepay or permanently reduce Indebtedness permitted by Section 6.01 that is secured on a pari passu basis (without regard to control of remedies) with the Liens securing the Obligations (or, in each case, any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis (without regard to control of remedies) with Liens securing the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Excess Proceeds from such Asset Disposition or Casualty Event (such Indebtedness permitted by Section 6.01 that is incurred after the Closing Date or, in each case, any Refinancing Indebtedness in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control of remedies) with the Obligations (“Other Applicable Indebtedness”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (I)(y), (1) such Borrower or such Restricted Subsidiary shall permanently retire that portion of such Indebtedness so repaid or prepaid and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to a Borrower or a Restricted Subsidiary) and (2) such Borrower or such Restricted Subsidiary will equally and ratably reduce the amount of Indebtedness outstanding under this Agreement by prepaying Loans in accordance with Section 2.09(c), or (II) if the assets subject to the respective Asset Disposition or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement (but without any corresponding permanent reductions of the commitments thereunder);
(B) so long as the Borrowers deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Borrowers intend to cause the Excess Proceeds from such event (or a portion thereof specified in such certificate, in which case the remaining portion shall be applied pursuant to clause (A)) to be applied within 18 months after receipt of such Excess Proceeds to acquire Additional Assets to be used useful in the business of the Borrowers or Borrower and the Restricted Subsidiaries other Loan Parties, and certifying that no Default has occurred and in each case, such property is continuinglocated within the United States; provided further that, to acquire Additional Assets; provided, however, that, if the extent actually reinvested in such assets subject to or property within the respective 180-day period after the applicable Asset Disposition or Casualty Event constituted TL Priority Collateralcommitted to be reinvested within ninety (90) days after the end of such period, such Net Cash Proceeds will be excluded from the calculation of aggregate Net Cash Proceeds in such Fiscal Year. If the net sales proceeds of any such Additional asset sales, including the sale of any business, Subsidiary or investment, for any Fiscal Year are greater than 20% of Consolidated Tangible Assets so acquired shall constitute TL Priority Collateral of the Borrower and concurrently with their acquisition the Loan Parties, the Borrower shall be added required to make prepayments of the 72 Collateral securing the Secured Obligations Term Loan in accordance with the provisions of Section 5.11, Section 5.13 6.2.2 and the Collateral Documents; provided, further, that to the extent such Additional Assets constitute the Capital Stock of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Revolving Commitment shall be reduced as set forth in Section 5.11, the assets of such Person that may be used or useful in a Related Business are, in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations6.1.2. Notwithstanding the foregoing, for purposes of clause (B)on terms and conditions acceptable to Administrative Agent and Required Lenders, if during such 18-month period a Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it may, at any one time, sell its accounts receivable up to apply such Excess Proceeds of any Asset Disposition or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.09(b) then, so long as (i) no Event of Default then exists and (ii) such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 18 months to complete, then such 18-month period will be extended with respect to the an aggregate amount of Excess Proceeds so committed for the period of time necessary to complete such project (or, if earlier, the date of termination of such agreement); or
(C) a combination of clauses (A) and (B), subject to the requirements thereunder,$65,000,000.
Appears in 1 contract
Asset Disposition. Upon the receipt of any Net Proceeds of (x) any Asset Disposition in excess of $75,000,000 in the aggregate with all other Asset Dispositions made after the Closing Date or (y) Casualty Event (including by the Administrative Agent as loss payee in respect of any Casualty Event) (such Net Proceeds, “Excess Proceeds”), the Borrowers or the applicable Restricted Subsidiary, at their option, shall apply cash in an amount equal to the Excess Net Proceeds from such Asset Disposition or Casualty Event either:
(A) (I) if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, within five Business Days after receipt of such Excess Net Proceeds to (x) prepay Term B Loans in an aggregate amount equal to 100% of the amount of such Excess Net Proceeds or (y) to make an offer to purchase, prepay or permanently reduce Indebtedness permitted by Section 6.01 that is secured on a pari passu basis (without regard to control of remedies) with the Liens securing the Obligations (or, in each case, any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis (without regard to control of remedies) with Liens securing the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Excess Net Proceeds from such Asset Disposition or Casualty Event (such Indebtedness permitted by Section 6.01 that is incurred after the Closing Date or, in each case, any Refinancing Indebtedness in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control of remedies) with the Obligations (“Other Applicable Indebtedness”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (I)(y), (1) such Borrower or such Restricted Subsidiary shall permanently retire that portion of such Indebtedness so repaid or prepaid and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to a Borrower or a Restricted Subsidiary) and (2) such Borrower or such Restricted Subsidiary will equally and ratably reduce the amount of Indebtedness outstanding under this Agreement by prepaying Loans in accordance with Section 2.09(c), or (II) if the assets subject to the respective Asset Disposition or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement (but without any corresponding permanent reductions of the commitments thereunder);
(B) so long as the Borrowers deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Borrowers intend to cause the Excess Net Proceeds from such event (or a portion thereof specified in such certificate, in which case the remaining portion shall be applied pursuant to clause (A)) to be applied within 18 months after receipt of such Excess Net Proceeds to acquire Additional Assets to be used in the business of the Borrowers or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, to acquire Additional Assets; provided, however, that, if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, any such Additional Assets so acquired shall constitute TL Priority Collateral and concurrently with their acquisition shall be added to the 72 Collateral securing the Secured Obligations in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents; provided, further, that to the extent such Additional Assets constitute the Capital Stock of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Section 5.11, the assets of such Person that may be used or useful in a Related Business are, in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations. Notwithstanding the foregoing, for purposes of clause (B), if during such 18-month period a Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Excess Net Proceeds of any Asset Disposition or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.09(b) then, so long as (i) no Event of Default then exists and (ii) such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 18 months to complete, then such 18-month period will be extended with respect to the amount of Excess Net Proceeds so committed for the period of time necessary to complete such project (or, if earlier, the date of termination of such agreement); or
(C) a combination of clauses (A) and (B), subject to the requirements thereunder,.
Appears in 1 contract
Asset Disposition. Upon (a) In the event that APIL Partners, Ameritech or any of their respective Affiliates discontinues publication of any of the Directories or Street Address Directories as a result of any sale, exchange, lease, transfer or other disposition of any of the Directories, Street Address Directories or Directory Assets, other than to an Affiliate of APIL Partners or Ameritech, (such event, an "Asset Disposition"), then APIL Partners and Ameritech, on behalf of themselves and their respective Affiliates, will cause to be paid to Donnelley an amount equal to fifty percent (50%) of the proceeds received by APIL Partners, Ameritech or any of their respective Affiliates (the "Ameritech Disposition Party") in connection with such Asset Disposition. The Ameritech Disposition Party causing such Asset Disposition, as defined in this Section 9(a), shall notify Donnelley of the Asset Disposition upon the execution of documents causing such Asset Disposition and provide a copy of such documents to Donnelley within five (5) days of their execution and make such payment to Donnelley within ten (10) days of the closing on such Asset Disposition.
(b) In the event that an Asset Disposition also involves the sale of other assets, then APIL Partners and Ameritech, on behalf of themselves and their respective Affiliates, will cause to be paid to Donnelley an amount equal to fifty percent (50%) of the fair market value of the Directories, Street Address Directories, and Directory Assets included in such Asset Disposition, as determined pursuant to Sections 9(d) and (e).
(c) In the event that APIL Partners, Ameritech or any of their respective Affiliates enters into an agreement with a third party pursuant to which APIL Partners, Ameritech or any of their respective Affiliates agrees to cease publication of one or more Directories or Street Address Directories for a period of 24 months or more, then such agreement shall be deemed to be an "Asset Disposition" of such Directories, Street Address Directories, and the Directory Assets associated therewith and upon cessation of publication thereof, APIL Partners and Ameritech, on behalf of themselves and their respective Affiliates, will cause to be paid to Donnelley an amount equal to fifty percent (50%) of the fair market value of such Directories, Street Address Directories, and the Directory Assets associated therewith, as determined pursuant to Sections 9(d) and (e).
(i) In the event that an Asset Disposition as defined in Sections 9(b) or (c) occurs, the Ameritech Disposition Party shall notify Donnelley of the Asset Disposition upon the execution of documents causing such Asset Disposition and provide a copy of such documents to Donnelley within five (5) days of their execution. At the same time such documents are sent to Donnelley, the Ameritech Disposition Party shall describe the assets subject to the Asset Disposition with reasonable particularity and state the fair market value of the assets subject to the Asset Disposition (the "FMV Notice").
(ii) Following Donnelley's receipt of any Net Proceeds such documents and the FMV Notice, Donnelley and the Ameritech Disposition Party shall attempt to agree upon the fair market value in connection with such Asset Disposition. If no agreement is reached on the fair market value within 20 days of Donnelley's receipt of the FMV Notice, Donnelley may have the fair market value (as determined pursuant to Section 9(e)) of the assets subject to the Asset Disposition determined by delivering a Notice to cause such determination (the "Determination Notice") to the Ameritech Asset Disposition Party within twenty-five (25) days of Donnelley's receipt of the FMV Notice. If no Determination Notice is received by the Ameritech Asset Disposition Party within such time period, the Ameritech Disposition Party shall pay to Donnelley an amount equal to fifty percent (50%) of the fair market value of the assets subject to the Asset Disposition, as stated in the FMV Notice, within thirty days (30) days of Donnelley's receipt of the FMV Notice.
(iii) Delivery of the Determination Notice will obligate the Ameritech Disposition Party to pay Donnelley the amount equal to the higher of either (a) an amount equal to fifty percent (50%) of the fair market value of the assets subject to the Asset Disposition as stated in the FMV Notice or (b) an amount equal to fifty percent (50%) of the fair market value of such assets subject to the Asset Disposition as determined pursuant to Section 9(e).
(iv) If the fair market value of the assets subject to the Asset Disposition, as determined pursuant to Section 9(e), is higher than the fair market value stated in the FMV Notice, the Ameritech Asset Disposition Party shall be responsible for 100% of the fees of the investment banker referred to in Section 9(e). If the fair market value of the assets subject to the Asset Disposition, as determined pursuant to Section 9(e), is lower than the fair market value stated in the FMV Notice, Donnelley shall be responsible for 100% of the fees of the investment banker referred to in Section 9(e).
(i) Fair market value shall be determined by a nationally recognized investment banker selected by mutual agreement of Donnelley and the Ameritech Disposition Party within 10 days (the "Mutual Selection Period") of the Determination Notice. In the event that an investment banker is not selected by the Ameritech Disposition Party and Donnelley within the Mutual Selection Period, then the Ameritech Disposition Party and Donnelley shall each select an investment banker from the list of three investment bankers (or their successors) attached hereto as Exhibit D. The Ameritech Disposition Party and Donnelley shall simultaneously deliver to the other party its selection of an investment banker on the fifth day after the termination of the Mutual Selection Period. If both the Ameritech Disposition Party and Donnelley select the same investment banker, the investment banker so selected shall serve as the investment banker for the purpose of determining fair market value. If Donnelley and the Ameritech Disposition Party select a different investment banker, then the investment banker listed on Exhibit D, which neither selected, shall serve as the investment banker to determine fair market value.
(ii) The selected investment banker shall value the Assets subject to the Asset Disposition at their fair private market value by valuing such assets in the context of an auction process taking into account such other factors as the investment banker deems relevant to such analysis. The valuation shall be completed within sixty (60) days of the selection of the investment banker and promptly communicated in writing to the Ameritech Disposition Party and Donnelley. The fair market value so determined shall be final and binding on the Ameritech Disposition Party and Donnelley. Within 10 days of the delivery of the investment banker's valuation, the Ameritech Disposition Party shall pay Donnelley the amount equal to the higher of (xa) any an amount equal to fifty percent (50%) of the fair market value of the assets subject to the Asset Disposition in excess of $75,000,000 as stated in the aggregate with all other Asset Dispositions made after the Closing Date FMV Notice or (yb) Casualty Event an amount equal to fifty percent (including by 50%) of the Administrative Agent fair market value of the assets subject to the Asset Disposition as loss payee in respect determined under Section 9(e).
(f) In the event that APIL Partners, Ameritech or any of any Casualty Event) its respective Affiliates enters into an agreement with a third party pursuant to which APIL Partners, Ameritech or one of their respective Affiliates agrees to cease publication of one or more Directories or Street Address Directories for a period less than 24 months (such Net Proceedsperiod, “Excess Proceeds”the "Non-Compete Period"), then, during the Borrowers or Non-Compete Period, APIL Partners and Ameritech, on behalf of themselves and their respective Affiliates, will add to the applicable Restricted Subsidiary, at their option, shall apply cash in Monthly Advertiser Contract Amount and Monthly Street Address Directory Contract Amount an amount equal to the Excess Proceeds from average Monthly Advertiser Contract Amount and Monthly Street Address Directory Contract Amount with respect to such Asset Disposition Directories or Casualty Event either:Street Address Directories over the 12 month period immediately prior to the commencement of the Non-Compete Period.
(Ig) if the assets subject Notwithstanding anything herein contained to the respective Asset Disposition or Casualty Event constituted TL Priority Collateralcontrary, within five Business Days after receipt of such Excess Proceeds to (x) prepay Term B Loans in an aggregate amount equal to 100% of the amount of such Excess Proceeds or (y) to make an offer to purchase, prepay or permanently reduce Indebtedness permitted by Section 6.01 it is expressly agreed that is secured on a pari passu basis (without regard to control of remedies) with the Liens securing the Obligations (or, in each case, any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis (without regard to control of remedies) with Liens securing the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Excess Proceeds from such Asset Disposition or Casualty Event (such Indebtedness permitted by Section 6.01 that is incurred after the Closing Date or, in each case, any Refinancing Indebtedness in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control of remedies) with the Obligations (“Other Applicable Indebtedness”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (I)(y), (1) such Borrower or such Restricted Subsidiary shall permanently retire that portion of such Indebtedness so repaid or prepaid and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to a Borrower or a Restricted Subsidiary) and (2) such Borrower or such Restricted Subsidiary will equally and ratably reduce the amount of Indebtedness outstanding under this Agreement by prepaying Loans in accordance with Section 2.09(c), or (II) if the assets subject to the respective Asset Disposition or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement (but without any corresponding permanent reductions of the commitments thereunder);
(B) so long as the Borrowers deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Borrowers intend to cause the Excess Proceeds from such event (or a portion thereof specified in such certificate, in which case the remaining portion shall be applied pursuant to clause (A)) to be applied within 18 months after receipt of such Excess Proceeds to acquire Additional Assets to be used in the business of the Borrowers or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, to acquire Additional Assets; provided, however, that, if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, any such Additional Assets so acquired shall constitute TL Priority Collateral and concurrently with their acquisition shall be added to the 72 Collateral securing the Secured Obligations in accordance with the provisions of Section 5.119 shall not apply to Directories (or the Directory Assets associated therewith) published on or after January 1, Section 5.13 and 1998 by APIL Partners, Ameritech or any of their respective Affiliates for primary distribution in areas where the Collateral Documents; providedDirectories are not published for primary distribution on this Agreement's effective date or Street Address Directories (or the Directory Assets associated therewith) published on or after January 1, further1998 by APIL Partners, that to the extent such Additional Assets constitute the Capital Stock Ameritech or any of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Section 5.11, the assets of such Person that may be used or useful their respective Affiliates in a Related Business are, in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations. Notwithstanding the foregoing, for purposes of clause (B), if during such 18-month period a Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Excess Proceeds of any Asset Disposition or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.09(b) then, so long as (i) no Event of Default then exists and (ii) such investment in Additional Assets is a project authorized geographic areas not covered by the Board of Directors that will take longer than such 18 months to complete, then such 18-month period will be extended with respect to the amount of Excess Proceeds so committed for the period of time necessary to complete such project (or, if earlier, the date of termination of such agreement); or
(C) a combination of clauses (A) and (B), subject to the requirements thereunder,Street Address Directories on this Agreement's effective date.
Appears in 1 contract
Asset Disposition. Upon the receipt of any Net Proceeds of (x) any Asset Disposition in excess of $75,000,000 in the aggregate with all other Asset Dispositions made after the Closing Date or (y) Casualty Event (including by the Administrative Agent as loss payee in respect of any Casualty Event) (such Net Proceeds, “Excess Proceeds”), the Borrowers or the applicable Restricted Subsidiary, at their option, shall apply cash in an amount equal to the Excess Proceeds from such Asset Disposition or Casualty Event either:
(A) (I) if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, within five Business Days after receipt of such Excess Proceeds to (x) prepay Term B Loans in an aggregate amount equal to 100% of the amount of such Excess Proceeds or (y) to make an offer to purchase, prepay or permanently reduce Indebtedness permitted by Section 6.01 that is secured on a pari passu basis (without regard to control of remedies) with the Liens securing the Obligations (or, in each case, any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis (without regard to control of remedies) with Liens securing the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Excess Proceeds from such Asset Disposition or Casualty Event (such Indebtedness permitted by Section 6.01 that is incurred after the Closing Date or, in each case, any Refinancing Indebtedness in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control of remedies) with the Obligations (“Other Applicable Indebtedness”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (I)(y), (1) such Borrower or such Restricted Subsidiary shall permanently retire that portion of such Indebtedness so repaid or prepaid and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to a Borrower or a Restricted Subsidiary) and (2) such Borrower or such Restricted Subsidiary will equally and ratably reduce the amount of Indebtedness outstanding under this Agreement by prepaying Loans in accordance with Section 2.09(c), or (II) if the assets subject to the respective Asset Disposition or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement (but without any corresponding permanent reductions of the commitments thereunder);
(B) so long as the Borrowers deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Borrowers intend to cause the Excess Proceeds from such event (or a portion thereof specified in such certificate, in which case the remaining portion shall be applied pursuant to clause (A)) to be applied within 18 months after receipt of such Excess Proceeds to acquire Additional Assets to be used in the business of the Borrowers or the Restricted Subsidiaries and certifying that no Default has occurred and is continuing, to acquire Additional Assets; provided, however, that, if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, any such Additional Assets so acquired shall constitute TL Priority Collateral and concurrently with their acquisition shall be added to the 72 Collateral securing the Secured Obligations in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents; provided, further, that to the extent such Additional Assets constitute the Capital Stock of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Section 5.11, the assets of such Person that may be used or useful in a Related Business are, in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations. Notwithstanding the foregoing, for purposes of clause (B), if during such 18-month period a Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Excess Proceeds of any Asset Disposition or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.09(b) then, so long as (i) no Event of Default then exists and (ii) such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 18 months to complete, then such 18-month period will be extended with respect to the amount of Excess Proceeds so committed for the period of time necessary to complete such project (or, if earlier, the date of termination of such agreement); or
(C) a combination of clauses (A) and (B), subject to the requirements thereunder,
Appears in 1 contract
Asset Disposition. Upon The Company shall not sell, lease, transfer or otherwise dispose of, or permit any of their Material Subsidiaries or the receipt Guarantors to sell, lease, transfer or otherwise dispose of, any property of the Company or any Guarantor or any Material Subsidiary of the Company, except (i) sales of inventory in the ordinary course of business and on reasonable terms, (ii) sales of worn out, surplus or obsolete equipment in the ordinary course of business, if no Default exists at the time of such sale, (iii) replacement of equipment in the ordinary course of business with other equipment at least as useful and beneficial to the Company or its Material Subsidiaries and their respective businesses as the equipment replaced if no Default exists at the time of such replacement and an Acceptable Security Interest exists in such other equipment at the time of such replacement, (iv) sales of other immaterial Property (other than Equity Interests, Debt or other obligations of any Net Proceeds Subsidiary) in the ordinary course of business and on reasonable terms, if no Default exists at the time of such sale; provided that Property may not be sold pursuant to this CLAUSE (iv) if the aggregate fair market value of all Property sold pursuant to this CLAUSE (iv) exceeds $250,000 in any year, (v) sales or other dispositions of assets which are not Collateral for cash in arm's length transactions, (vi) sales, leases, transfers or other dispositions of the Refineries (in whole or in part, including to each other), (vii) the MAPL Asset Disposition and Seminole Asset Disposition, (viii) sales or other dispositions of assets of NewGP or its Subsidiaries and the transfer by Williams GP, LLC to NewGP of the general partnership interests and i▇▇▇▇▇▇▇▇ ▇▇stribution rights in MLP, (ix) Permitted Dispositions, (x) sale of Equity Interests in NewGP, (xi) transfers by the Guarantors to other Guarantors and transfers by non-Guarantor Subsidiaries to any Asset Disposition other Subsidiary, in excess of $75,000,000 each case in the aggregate with all other Asset Dispositions made after the Closing Date or ordinary course of business and (yxii) Casualty Event (including by the Administrative Agent as loss payee in respect of any Casualty Event) (such Net Proceeds, “Excess Proceeds”), the Borrowers or the applicable Restricted Subsidiary, at their option, shall apply cash in an amount equal transfers to the Excess Proceeds from such Asset Disposition or Casualty Event either:
State of California of up to 6 turbines in connection with the settlement of the California Proceedings, (Ixiii) if the assets subject Arctic Fox Capital Contribution, and (xiv) transfers of Assets and Property by Subsidiaries of TGT which may not be restricted pursuant to the respective Asset Disposition or Casualty Event constituted TL Priority Collateralthat certain Indenture dated as of April 11, within five Business Days after receipt of such Excess Proceeds to 1994 between TGT, as Issuer and The Chase Manhattan Bank, as Trustee; provided that (xA) prepay Term B Loans in an aggregate amount equal to 10050% of the amount gross cash proceeds resulting from any disposition of such Excess Proceeds or Collateral permitted pursuant to clauses (yii), (iv) through (vii), (ix) and (x), shall, be deposited immediately upon receipt to the Collateral Account (as defined in the Collateral Trust Agreement) to make an offer be maintained with, and under the 45 FIRST AMENDED AND RESTATED TERM LOAN AGREEMENT control of, the Collateral Trustee pursuant to purchasethe Collateral Trust Agreement and applied in accordance with the terms and conditions of the L/C Agreement and the Primary Credit Agreement and (B) assets disposed of pursuant to clauses (i) through (v) shall not constitute a material part of the assets of TGPL, prepay TGT or permanently reduce Indebtedness permitted by Section 6.01 that is secured on a pari passu basis NWP and (without regard to control of remediesC) with respect to any Collateral replaced, exchanged or transferred (in the Liens securing case of clause (xi) only) or any non-cash proceeds received from the Obligations (orsale, transfer or other disposition of Collateral, in each case, any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis (without regard to control of remedies) with Liens securing the Obligations) case pursuant to this SECTION 8.16, the terms Company (or such Material Subsidiary or Guarantor, as applicable) shall undertake all actions as more fully set forth in, and subject to, Section 5.01(f) of the documentation governing Primary Credit Agreement to (1) grant an Acceptable Security Interest in favor of the Collateral Trustee on any new Collateral resulting from any such Indebtedness with such Excess Proceeds replacement or exchange or on the non-cash proceeds received from such Asset Disposition the sale or Casualty Event other disposition of Collateral and (such Indebtedness permitted by Section 6.01 that is incurred after 2) in the Closing Date or, in each case, any Refinancing Indebtedness in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control case of remedies) with the Obligations (“Other Applicable Indebtedness”); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness Collateral transferred pursuant to clause (I)(yxi), to maintain an Acceptable Security Interest on such transferred Collateral. Notwithstanding anything in this SECTION 8.16 to the contrary, and for greater certainty, nothing in this Agreement shall prohibit (1) such Borrower a transfer of Equity Interests of RMT from the Company to RMT LLC or such Restricted Subsidiary shall permanently retire that portion of such Indebtedness so repaid any RMT Asset Disposition or prepaid and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to a Borrower or a Restricted Subsidiary) and (2) such Borrower the Company or such Restricted Subsidiary will equally any of its Subsidiaries (including RMT LLC, RMT and ratably reduce the amount their respective Subsidiaries) from selling, leasing, transferring or otherwise disposing of Indebtedness outstanding under this Agreement by prepaying Loans in accordance with Section 2.09(c), or (II) if the assets subject to the respective Asset Disposition or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement (but without any corresponding permanent reductions property of the commitments thereunder);
(B) so long as the Borrowers deliver to the Administrative Agent a certificate Company or any of a Financial Officer to the effect that the Borrowers intend to cause the Excess Proceeds from such event (or a portion thereof specified in such certificate, in which case the remaining portion shall be applied pursuant to clause (A)) to be applied within 18 months after receipt of such Excess Proceeds to acquire Additional Assets to be used in the business of the Borrowers or the Restricted its Subsidiaries and certifying that no Default has occurred and is continuing, to acquire Additional Assets; provided, however, that, if the assets subject to the respective Asset Disposition or Casualty Event constituted TL Priority Collateral, any such Additional Assets so acquired shall constitute TL Priority Collateral and concurrently with their acquisition shall be added to the 72 Collateral securing the Secured Obligations in accordance with the provisions of Section 5.11the Barrett Loan Agreement. For the avoidance of doubt, Section 5.13 and the Collateral Documents; provided, further, that to the extent such Additional Assets constitute the Capital Stock modification or ▇▇▇▇▇▇▇ion of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Section 5.11, the assets of such Person that may be used or useful in a Related Business are, in accordance with the provisions of Section 5.11, Section 5.13 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations. Notwithstanding the foregoing, for purposes of clause (B), if during such 18-month period a Borrower or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Excess Proceeds of any Asset Disposition or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.09(b) then, so long as (i) no Event of Default then exists and (ii) such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 18 months to complete, then such 18-month period will be extended voting rights with respect to the amount any Equity Interests shall not constitute a disposition of Excess Proceeds so committed for the period of time necessary to complete such project (or, if earlier, the date of termination of such agreement); or
(C) a combination of clauses (A) and (B), subject to the requirements thereunder,property.
Appears in 1 contract