Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and (2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), 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; (B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion); (C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and (D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b). (b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale: (1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness); (2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company; (3) to make a capital expenditure; (4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or (5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period. (c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date. (d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10. (e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million). (f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law. (g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 9 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, of (as approved determined in good faith by the Company’s Board ); (ii) solely with respect to any Asset Sale or series of Directors; and
(2) related Asset Sales for which the Company and its Restricted Subsidiaries receive aggregate consideration in excess of $50.0 million, at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash or Cash Equivalents. For purposes of this provision only ; provided that the amount of: (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or the footnotes thereto if such incurrence or accrual had taken place on the date of such balance sheet, as determined by the Company) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets;
; (Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);
; and (Cc) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date after December 14, 2010 that is at the that time outstanding, not to exceed the greater of (a) $300.0 150 million and (b) 3.55% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
), shall, in each of (D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(ba).
, (b) Within 365 days after and (c) above, be deemed to be cash for the receipt purposes of any Net Proceeds this provision or for purposes of any the second paragraph of this Section 4.10; and (iii) upon the consummation of an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Businessshall apply, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of cause such Restricted Subsidiary determines not to apply apply, the Net Cash Proceeds relating to such Asset Sale as set forth in clause within 545 days of receipt thereof either (1), (2), (3), (4A) to prepay any Secured Debt or (5) Indebtedness of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on that is not a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (Guarantor and, if required by in the terms case of any other such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the Company ranking pari passu with the Notes fact that no prepayment is required in right of payment and which has similar provisions requiring the Company either order to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales do so (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall no prepayment should be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 millionrequired).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.,
Appears in 7 contracts
Samples: Indenture (TransDigm Group INC), Indenture (TransDigm Group INC), Indenture (TransDigm Group INC)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1) the Company (or the any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration (including by way of relief or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the fair market value Fair Market Value (measured as of determined on the date of the definitive agreement with respect to such Asset Salecontractual obligation is entered into) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assets;
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);; and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 1,000 million and (by) 3.54.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall each be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of any the Net Cash Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary of the Company may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(1i) to repayrepay Obligations under the Credit Facilities that are secured by a Lien (and in the case of revolving obligations, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtednessto correspondingly permanently reduce commitments with respect thereto);
(2ii) to acquire all repay either (A) Obligations under the Securities or substantially all (B) Obligations under any other Pari Passu Indebtedness (and in the case of the assets of another Related Businessrevolving obligations, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4correspondingly permanently reduce commitments with respect thereto); provided that in the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds case of any repayment pursuant to clause (2B), the Company or such Restricted Subsidiary will reduce Obligations under the Securities on an equal or ratable basis with the Pari Passu Indebtedness repaid pursuant to clause (B) (1) on a pro rata basis as provided under Article 3 hereof, (2) through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (3) or by making an offer (4in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Securities at 100% of this Section 4.10(b)the principal amount thereof, as applicableplus the amount of accrued but unpaid interest, if and any, on the amount of Securities that would otherwise be prepaid (which offer shall be deemed to the extent that, within 365 days after the be an Asset Sale Offer for purposes hereof); and/or
(iii) to acquire Additional Assets; provided that generated in the case of clause (iii) above, a binding commitment (whether or not subject to conditions) shall be treated as a permitted application of the Net ProceedsCash Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company has entered or such Restricted Subsidiary enters into and another binding commitment (whether or not abandoned or rejected a binding agreement subject to consummate any reinvestment described in clause (2), (3conditions) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end six months of such 365-day period.
(c) cancellation or termination of the prior binding commitment. Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest use such Net Cash Proceeds in for any manner purpose not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Any Net Cash Proceeds from any Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4the first sentence of this Section 4.06(b) or (5) of Section 4.10(b) (each, a shall be deemed to constitute “Net Proceeds Offer Trigger Date”), such Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on exceeds (i) $150.0 million, in the case of a single transaction or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)a series of related transactions, (2), (3), (4) or (5ii) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) $300.0 million aggregate amount in any fiscal year, the Issuers shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of Securities and to all holders of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)Indebtedness containing provisions similar to those set forth in this Indenture with respect to Asset Sales, from to purchase the holders maximum principal amount of such Securities and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case appropriate, that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes thereof (or in the event such Pari Passu Indebtedness was issued with original issue discount, 100% of the principal amount thereof), plus accrued and unpaid interest, if any (or accreted valuesuch lesser price, if any, as may be provided by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoingclosing of such offer, if at any time any non-cash consideration received by in accordance with the Company or any Restricted Subsidiaryprocedures set forth in this Section 4.06 and, as in the case may beof Securities, is in connection with any a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Issuers shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration)Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed (i) $150.0 million, then such conversion in the case of a single transaction or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
a series of related transactions, or (eii) The Company may defer the Net Proceeds Offer until there is an $300.0 million aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as any fiscal year by sending the notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicable, Securities or the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, other Pari Passu Indebtedness tendered surrendered by such Holders and holders thereof exceeds the holders thereof) will amount of Excess Proceeds, the Issuers shall select the Securities and such other Pari Passu Indebtedness to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount Securities or accreted value, as the case may be, of any such other Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A , and in the case of an Asset Sale Offer being effected in advance of being required to do so by this Indenture, the amount of Net Cash Proceeds the Issuers are offering to apply in such Asset Sale Offer shall remain open for a period be excluded in subsequent calculations of 20 Business Days or such longer period as may be required by applicable lawExcess Proceeds.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under Section 3.09 or described in this Section 4.10 Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Cash Proceeds from the Asset Sale (or Asset Sales) pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such complianceallocation with the provisions of Section 4.06(b). Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. On such date, the Company shall also irrevocably deposit with the Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as a Paying Agent, segregate and hold in trust) a sum sufficient to pay the purchase price for the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company pursuant to such Asset Sale Offer. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price for such Securities. In the event that the Excess Proceeds delivered by the Company to the Paying Agent is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company on the Business Day following the expiration of the Offer Period.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice of an Asset Sale Offer at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives, not later than two Business Days prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Securities for purchase shall be made by the Issuers in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not listed, by lot or such other method as the Issuers shall deem fair and appropriate (and in such manner as complies with applicable requirements of the Depository); provided that the Issuers shall not select Securities for purchase which would result in a Holder with a principal amount of Securities less than the minimum denomination to the extent practicable.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities (with a copy to the Trustee) at such Holder’s registered address (or otherwise in accordance with the Depository’s procedures). If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Security; provided that global Securities will be reduced in accordance with the applicable procedures of The Depository Trust Company to reflect the unpurchased portion of any such Security. On and after the purchase date, unless the Issuers default in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 6 contracts
Samples: Indenture (Albertsons Companies, Inc.), Indenture (Albertsons Companies, Inc.), Indenture (Albertsons Companies, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall will be deemed to be cash:
(A) Cash Equivalents;
(B) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 assetsassets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(BC) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 180 days of receipt, to the extent of the cash received in that conversion);
(CD) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (CD) (and not subsequently converted into Cash Equivalents that are treated as Net Proceeds of an Asset Sale), does not exceed $25.0 million since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash ConsiderationDate, with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(DE) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)) of this Indenture.
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay Indebtedness outstanding pursuant to Section 4.09(b)(1) of this Indenture and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanyCompany or additional Capital Stock of an existing non-Wholly Owned Subsidiary which is a Restricted Subsidiary;
(3) to make a capital expenditureexpenditure with respect to a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets;
(4) to acquire Additional Assets;
(5) to repay (i) Notes or (ii) any other assets Indebtedness (other than securities Indebtedness owing to the Company or current assetsa Restricted Subsidiary) that is pari passu in right of payment with the Notes, and in the case of revolving Indebtedness, to correspondingly reduce commitments with respect thereto; provided that if the Company or any of its Restricted Subsidiaries shall so repay any Indebtedness other than the Notes, the Company will repay the Notes on a pro rata basis by, at its option, (A) redeeming Notes pursuant to Section 3.07 of this Indenture or (B) purchasing Notes through open-market purchases, at a price equal to or higher than 100% of the principal amount thereof, or making an offer (in accordance with the procedures set forth below) to all holders to purchase their Notes on a ratable basis with such other Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be used or useful in a Related Businessrepurchased; or
(56) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)foregoing; provided that the Company and its Restricted Subsidiaries will requirements of clauses (2) through (4) above shall be deemed to have applied such Net Proceeds pursuant be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to clause make the acquisitions or expenditures referred to in any of clauses (2), (3) or through (4) of this Section 4.10(b), as applicable, if and to above is entered into by the extent that, Company or its Restricted Subsidiary within 365 days after the Asset Sale receipt of such Net Proceeds and such Net Proceeds are applied in accordance with such agreement; provided, further, that generated (x) such acquisition or investment is then consummated within 545 days after the receipt of such Net Proceeds and (y) if such acquisition or investment is not consummated within the period set forth in sub clause (x), or otherwise applied as set forth in clauses (1) or (5) above, the Net Proceeds not so applied will be deemed to constitute Excess Proceeds under Section 4.10(c) of this Indenture. Pending the final application of any Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e)Notwithstanding the foregoing, on the 366th day (as extended pursuant to the provisions in extent a distribution of any or all of the preceding paragraph) after an Net Proceeds of any Asset Sale or such earlier date, if any, as the Board of Directors of Sales by a Foreign Subsidiary to the Company or another Restricted Subsidiary (i) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other organizational or administrative impediments from being repatriated to the United States or (ii) would have a material adverse tax consequence, as reasonably determined by the Company, the portion of such Restricted Subsidiary determines not to apply the Net Proceeds relating so affected will not be required to be applied in compliance with this Section 4.10; provided that if at any time within one year following the date on which such affected Net Proceeds would otherwise have been required to be applied pursuant to this Section 4.10, distribution of any of such affected Net Proceeds is no longer prohibited or delayed by applicable local law, restricted by any applicable organizational document or agreement, subject to other organizational or administrative impediment from being repatriated to the United States, and would not result in a material adverse tax consequence, then an amount equal to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have so permitted to be repatriated will be promptly applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated, whether or not been applied on they are repatriated) in compliance with this Section 4.10. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or before such an Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require the Company or any Foreign Subsidiary to repatriate cash or to apply any Net Proceeds Offer Trigger described in clause (i) above in compliance with this Section 4.10 in the event that such repatriation is not permitted under applicable local law, applicable organizational documents or agreements or other impediment within one year following the date on which the respective payment would otherwise have been required.
(c) Any Net Proceeds from Asset Sales received since the Issue Date that were not or are not applied or invested as permitted provided in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a of this Indenture shall constitute “Net Excess Proceeds.” When the aggregate amount of Excess Proceeds Offer Amount”) shall be applied by exceeds $20.0 million, within ten Business Days thereof, the Company or such Restricted Subsidiary to will make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders and if the Company elects (and, if or is required by the terms of such other pari passu Indebtedness), any holders of other Indebtedness of the Company ranking that is pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountNotes. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereoninterest, if anyany to, to but excluding, the Net date of purchase, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturebasis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 5 contracts
Samples: Senior Notes Indenture (AdaptHealth Corp.), Senior Notes Indenture (AdaptHealth Corp.), Senior Notes Indenture (AdaptHealth Corp.)
Asset Sales. (a) The Company will Loral Space shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company Loral Space (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ;
(2) such fair market value is (A) determined by two Officers of Loral Space if the fair market value is less than $25 million or (B) determined by the Company’s Board of DirectorsDirectors and evidenced by a resolution of the Board of Directors if the fair market value is $25 million or greater, and, in each case, such fair market value is set forth in an Officers' Certificate delivered to the Trustee; and
(23) at least 75% of the consideration therefor received in the Asset Sale by the Company Loral Space or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For Only for purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”3), each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company’s Loral Space's or such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company Loral Space or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assetsassets pursuant to a customary novation agreement that releases Loral Space or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the Company Guarantor or any such Restricted Subsidiary from such transferee that within 180 days are contemporaneously (subject to ordinary settlement periods) converted by the Company Loral Space or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
(C) any assets described in clause (2) or (4) of paragraph (b) of this Section 4.14;
(D) Marketable Securities; and
(E) Designated Noncash Consideration received by Other Permitted Consideration; provided that the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined pursuant to clause (2) above) of such Designated Other Permitted Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash designated Other Permitted Consideration received pursuant to this clause (C) since E), less the Issue Date that amount of net cash proceeds previously realized in cash from prior Designated Other Permitted Consideration is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5less than 5% of Loral Space's Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Other Permitted Consideration (with the fair market value of each item of Designated Noncash Other Permitted Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, Loral Space may apply an amount equal (or, in the case of clause (2), (3) or (4) below, enter into a binding commitment to the apply) such Net Proceeds from such Asset SaleProceeds:
(1) to repay, prepay, redeem repay Indebtedness of Loral Space or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)any Restricted Subsidiary which is not subordinated to this Guaranty;
(2) to acquire all or substantially all of the assets of another Related Businessof, or a majority of the Voting Stock of, another Permitted Business or to acquire any purchase Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Companyfrom another Person;
(3) to make a capital expenditure;expenditure in a Permitted Business or to make an Investment in a Permitted Venture; or
(4) to acquire or to acquire the right to use other long-term assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary Loral Space may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day Guaranty.
(as extended pursuant to the provisions in the preceding paragraphd) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Any Net Proceeds relating to such from Asset Sale Sales that are not applied or invested as set forth provided in clause paragraph (1), (2), (3), (4) or (5b) of this Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such 4.14 shall constitute "Excess Proceeds." When the aggregate amount of Net Excess Proceeds which have not been applied on exceeds $15 million, Loral Space shall make, or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by cause the Company or such Restricted Subsidiary to make make, an offer Offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from Purchase to all Holders (and, if required by the terms of any Notes and all holders of other Indebtedness of the Company ranking that is pari passu with the Guaranty of the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Guaranty with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Offer to Purchase shall be equal to 100101% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed date 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 Trusteepurchase, and shall comply with the procedures set forth be payable in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If any Excess Proceeds 25 remain after consummation of an Offer to Purchase, Loral Space may use such Excess Proceeds for any purpose not otherwise prohibited by this Guaranty. If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds Offereach Offer to Purchase required by this Section 4.14, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(ge) The Company or the applicable Restricted Subsidiary, as the case may be, will Loral Space 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 each repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or required by this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance4.
Appears in 4 contracts
Samples: Guaranty (Loral Cyberstar Inc), Guaranty (Loral Space & Communications LTD), Guaranty (Loral Space & Communications LTD)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or 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 (measured as determined in good faith by the Board of Directors (or, in the event of Asset Sales for consideration of less than $50.0 million, by an officer of the date of the definitive agreement with respect to such Asset SaleCompany)) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by of (such fair market value to be determined on the Company’s Board date of Directorscontractually agreeing to such Asset Sale); and
(2ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary from such Asset Sale and all other Asset Sales since August 27, 2012 on a cumulative basis is in the form of cash or cash, Cash Equivalents. For purposes of this provision only , assets or Capital Interests described under Sections 4.10(b)(ii) or 4.10(b)(iii) or a combination thereof; provided that the amount of: (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Ax) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Notes, that are assumed by the transferee of any such assets;
assets and for which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing, (By) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of cash received) within 180 days following the cash received in that conversion);
closing of such Asset Sale, and (Cz) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (CSection 4.10(a)(ii) since the Issue Date that is at the time outstandingand not yet converted to cash or Cash Equivalents, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as , shall each be deemed to be cash or Cash Equivalents for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such any of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal such Net Proceeds:
(i) to repay any Indebtedness (other than Indebtedness of the Company or a Guarantor that is contractually subordinated to the Notes or the Guarantees);
(ii) to acquire a majority of the assets of, or a majority of the voting Capital Interests of, another Person (or division or business unit thereof); and/or
(iii) to make capital expenditures or to acquire other tangible long-term assets; provided that, prior to the application of the Net Proceeds from such the Asset Sale in accordance with this paragraph, the Company shall be entitled, within 180 days from the date of the Asset Sale:
(1) , to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all apply such Net Proceeds towards the redemption of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed in an amount not to have applied such Net Proceeds pursuant to clause (2exceed the limitation set forth in Section 4.07(b)(ix), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day .
(as extended pursuant to the provisions in the preceding paragraphc) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Any Net Proceeds relating to such from Asset Sale Sales that are not applied or invested as set forth provided in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a will be deemed to constitute “Net Proceeds Offer Trigger Date”), such Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $50.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) the Company shall be applied by the Company or such Restricted Subsidiary required to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from of sales of assets (an “Asset Sales (Sale Offer”) to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusand such other indebtedness that may be purchased out of the Excess Proceeds, if applicable, at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), thereof plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may bedate of purchase, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash3.09 and such other Indebtedness. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered surrendered by the Holders thereof and not withdrawn other pari passu Indebtedness described above tendered into such Asset Sale Offer exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicableExcess Proceeds, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the respective aggregate amount of the Notes (plusand such other Indebtedness to be purchased shall be determined on a pro rata basis, if applicable, and the Trustee shall select the Notes to be purchased in such aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to on a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturepro rata basis. Upon completion of any such Net Proceeds Offeroffer to purchase, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliancethereof.
Appears in 4 contracts
Samples: Indenture (Belden Inc.), Indenture (Belden Inc.), Indenture (Belden Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests shares of Capital Stock of a Restricted Subsidiary issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) sheet or in the footnotes thereto, 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 Note Guarantee) (i) that are assumed by the transferee of any such assetsassets and for which the Company or such Restricted Subsidiary, as the case may be, have been released or indemnified against further liability or (ii) in respect of which neither the Company nor any Restricted Subsidiary following such Asset Sale has any obligation;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary within 365 days into cash (cash, to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value that, when taken together with all other Designated Noncash Consideration previously received pursuant to this clause (C) since the Issue Date that is at the time and then outstanding, does not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) the greater of $200.0 million or 2.0% of Total Assets; and
(D) the fair market value (measured as of the date such Equity Interests any Investment, stock, asset, property or assets are received) of any Equity Interests or assets capital expenditure of the kind referred to in clauses (2) or (4) of Section 4.10(b4.10(b)(3).
(b) Within 365 days after one year from the later of the date of an Asset Sale or the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to prepay, repay, redeem or purchase (i) Indebtedness and other Obligations that are secured by a Lien or (ii) Indebtedness (other than any Disqualified Capital Stock) and other Obligations of a Non-Guarantor Subsidiary, and, in each case, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to prepay, repay, redeem or purchase Senior Indebtedness of the Company or any Guarantor; provided, that, the Company shall (y) apply a pro rata portion (determined and as modified based on the provisions set forth below) of such Net Proceeds to redeem or repurchase the Notes (i) as described in Section 3.07 or (ii) through open market purchases at a purchase price not less than 100% of the principal amount thereof, plus accrued but unpaid interest thereon, or (z) make an offer (in accordance with the procedures set forth below) to all holders to purchase their Notes at a purchase price not less than 100% of the principal amount thereof, plus accrued but unpaid interest thereon (in each case other than Indebtedness or other Obligations owed to the Company or an Affiliate of the Company); or
(3) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary), to acquire assets or property or to make capital expenditures, in each case (i) used or useful in a Permitted Business or (ii) that replace the properties and assets that are the subject of such Asset Sale; provided that, in the case of Section 4.10(b)(3), entering into and not abandoning or rejecting a binding commitment to make an investment to satisfy Section 4.10(b)(3) above shall be treated as a permitted application of Net Proceeds from the date of such commitment; provided that (x) such investment is consummated within 545 days after the later of the receipt of such Net Proceeds or the date of such Asset Sale and (y) if such investment is not consummated within the period set forth in subclause (x), or otherwise applied as set forth in Section 4.10(b) (1) or (2), the Net Proceeds not so applied will be deemed to constitute Excess Proceeds under Section 4.10(d).
(c) Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds the greater of $150.0 million or 1.5% of Total Assets, within 30 days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Senior Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of Notes and such other Senior Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount (or accreted value, if less, or such lesser amount as may be provided by the terms of such other Senior Indebtedness), plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, prepayment or redemption (subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date if the Notes have not been redeemed or repurchased prior to such date), and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Senior Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other Senior Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligations with respect to any Net Proceeds prior to the expiration of the relevant one year period or with respect to Excess Proceeds of $150.0 million or less.
(e) The Company 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(f) The provisions under this Indenture relative to the Company’s obligation to make an Asset Sale Offer may be waived or modified with the consent of the Holders of a majority in principal amount of the then outstanding Notes.
Appears in 4 contracts
Samples: Indenture (Endo International PLC), Indenture (Endo International PLC), Indenture (Endo International PLC)
Asset Sales. (a) The Company will Loral Space shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company Loral Space (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ;
(2) such fair market value is (A) determined by two Officers of Loral Space if the fair market value is less than $25 million or (B) determined by the Company’s Board of DirectorsDirectors and evidenced by a resolution of the Board of Directors if the fair market value is $25 million or greater, and, in each case, such fair market value is set forth in an Officers' Certificate delivered to the Holders of the Subordinated Notes; and
(23) at least 75% of the consideration therefor received in the Asset Sale by the Company Loral Space or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For Only for purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”3), each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company’s Loral Space's or such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company Loral Space or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assetsassets pursuant to a customary novation agreement that releases Loral Space or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the Company Guarantor or any such Restricted Subsidiary from such transferee that within 180 days are contemporaneously (subject to ordinary settlement periods) converted by the Company Loral Space or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
(C) any assets described in clause (2) or (4) of paragraph (b) of this Section 4.14;
(D) Marketable Securities; and
(E) Designated Noncash Consideration received by Other Permitted Consideration; provided that the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined pursuant to clause (2) above) of such Designated Other Permitted Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash designated Other Permitted Consideration received pursuant to this clause (C) since E), less the Issue Date that amount of net cash proceeds previously realized in cash from prior Designated Other Permitted Consideration is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5less than 5% of Loral Space's Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Other Permitted Consideration (with the fair market value of each item of Designated Noncash Other Permitted Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, Loral Space may apply an amount equal (or, in the case of clause (2), (3) or (4) below, enter into a binding commitment to the apply) such Net Proceeds from such Asset SaleProceeds:
(1) to repay, prepay, redeem repay Indebtedness of Loral Space or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)any Restricted Subsidiary which is not subordinated to this Guaranty;
(2) to acquire all or substantially all of the assets of another Related Businessof, or a majority of the Voting Stock of, another Permitted Business or to acquire any purchase Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Companyfrom another Person;
(3) to make a capital expenditure;expenditure in a Permitted Business or to make an Investment in a Permitted Venture; or
(4) to acquire or to acquire the right to use other long-term assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary Loral Space may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day Guaranty.
(as extended pursuant to the provisions in the preceding paragraphd) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Any Net Proceeds relating to such from Asset Sale Sales that are not applied or invested as set forth provided in clause paragraph (1), (2), (3), (4) or (5b) of this Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such 4.14 shall constitute "Excess Proceeds." When the aggregate amount of Net Excess Proceeds which have not been applied on exceeds $15 million, Loral Space shall make, or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by cause the Company or such Restricted Subsidiary to make make, an offer Offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from Purchase to all Holders (and, if required by the terms of any Subordinated Notes and all holders of other Indebtedness of the Company ranking that is pari passu with the Guaranty of the Subordinated Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Guaranty with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Subordinated Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Offer to Purchase shall be equal to 100101% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed date 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 Trusteepurchase, and shall comply with the procedures set forth be payable in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If any Excess Proceeds remain after consummation of an Offer to Purchase, Loral Space may use such Excess Proceeds for any purpose not otherwise prohibited by this Guaranty. If the aggregate principal amount of Subordinated Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Holders of the case may be, of Pari Passu Indebtedness) validly tendered by Subordinated Notes shall select the Holders thereof Subordinated Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Subordinated Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds Offereach Offer to Purchase required by this Section 4.14, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(ge) The Company or the applicable Restricted Subsidiary, as the case may be, will Loral Space 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 each repurchase of Subordinated Notes pursuant to a Net Proceeds Offerrequired by this Section 4.14. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.14 or the definition of the Offer to Purchase, the Company or such Restricted Subsidiary Loral Space shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or the provisions of this Section 4.10 4.14 or such definition by virtue of such complianceconflict.
Appears in 3 contracts
Samples: Subordinated Guaranty (Loral Space & Communications LTD), Subordinated Guaranty (Loral Cyberstar Inc), Subordinated Guaranty (Loral Cyberstar Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale Sale, unless:
(1) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directorsthe assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:amount of
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Notes, that are assumed by the transferee of any such assetsassets (or a third party on behalf of the transferee) and for which the Company or such Restricted Subsidiary has been validly released by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 90 days following the closing of such Asset Sale; and
(C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstandinghas not previously been converted to cash, not to exceed the greater of (ax) $300.0 35.0 million and (by) 3.53.0% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 days after any of the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted SubsidiarySubsidiary may, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.permanently reduce
Appears in 3 contracts
Samples: Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (Issuer or the any such Restricted Subsidiary, as the case may be) , receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Issuer or any such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsMarketable Securities. For purposes of this provision Section 4.11(a)(2) only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Aa) Cash Equivalents;
(b) any liabilities Indebtedness (as shown on other than any Subordinated Indebtedness) of the Company’s Issuer or any Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale (provided that the Issuer or such Restricted Subsidiary’s most recent balance sheet) of , as the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated case may be, making the Asset Sale is released from its obligations with respect to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assetsIndebtedness);
(Bc) any securities, notes or other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days after the consummation of such Asset Sale are converted by the Company recipient into (or such Restricted Subsidiary into with respect to which the recipient receives payments of) cash (or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion)conversion or payment;
(Cd) the Fair Market Value of any property or other assets (including Equity Interests of any Person that is or will be a Restricted Subsidiary following receipt thereof) received that are used or useful in a Permitted Business; and
(e) any Designated Noncash Non-Cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (Ce) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 20.0 million and (b) 3.52.0% of Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Non-Cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days 12 months after the receipt of any Net Proceeds of any from an Asset Sale, the Company Issuer or such the applicable Restricted Subsidiary, at its optionas the case may be, may apply an amount equal to the such Net Proceeds from such Asset Saleat its option:
(1) to repaypermanently repay or prepay
(a) Obligations under any Indebtedness of the Issuer or the Restricted Subsidiaries secured by Permitted Liens (whose commitments, prepayin the case of Indebtedness under any revolving credit facility, redeem shall be correspondingly reduced permanently in an amount equal to the principal amount so prepaid upon such repayment or prepayment);
(b) Obligations under the Notes or any Indebtedness of the Issuer that ranks pari passu in right of payment with the Notes (“Pari Passu Indebtedness”); provided that if the Issuer or any such Restricted Subsidiary shall so repay or prepay any such Pari Passu Indebtedness, the Issuer shall reduce (or offer to reduce) Obligations under the Notes on a not less than pro rata basis (based on the amount so applied to such repayments or prepayments) by, at their option, (A) redeeming Notes as described in Section 3.07, (B) making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes for cash at a price of at least 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon to, but excluding, the applicable date of repurchase (and any such Net Proceeds remaining following the consummation of such offer will not constitute Excess Proceeds) or (C) purchasing Notes through privately negotiated transactions or open market purchases, in a manner that complies with this Indenture and applicable securities laws, at a price in cash of not less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon to, but excluding, the applicable date of repurchase; or
(c) Indebtedness (of a Restricted Subsidiary that is a Non-Guarantor, other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)Indebtedness owed to the Issuer or another Restricted Subsidiary;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests Capital Stock of another Related a Person engaged in, a Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, such Person (and the Related Business Permitted Business) is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make a capital expenditure;
(4) to acquire other Additional Assets or improve or develop existing assets (other than securities or current assets) that will to be used or useful in a Related Permitted Business; or
(5) a in any combination of prepayments and investments permitted by the foregoing clauses applications described in clause (1), (2) (3) or (4) of this Section 4.11(b); provided that in the case of clause (2), (3) and ), or (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant ) (or clause (5) solely as it relates to clause (2), (3) or (4)) of this Section 4.10(b4.11(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement commitment to consummate any reinvestment described acquire the assets of a Permitted Business, or Capital Stock of a Person engaged in clause a Permitted Business, acquire Additional Assets (2), (3or improve or develop such existing assets) or (4) to make such capital expenditures shall be treated as a permitted application of this paragraph, and an amount of Net Proceeds as of the date of such reinvestment is thereafter completed commitment so long as the Issuer or such Restricted Subsidiary enters into such commitment with the good faith expectation that such amount of Net Proceeds shall be applied to satisfy such commitment within 180 days after the end date of such 365-day periodcommitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such amount of Net Proceeds is applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days after the date of such cancellation or termination, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such amount of Net Proceeds is applied, then such amount of Net Proceeds shall constitute Excess Proceeds.
(c) Any amounts of Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.11(b) shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $30.0 million, within ten Business Days thereafter, the Issuer shall make an Asset Sale Offer to all Holders and if the Issuer elects (or is required by the terms of Pari Passu Indebtedness), all holders of Pari Passu Indebtedness (an “Asset Sale Offer”) to purchase the maximum aggregate principal amount of Notes and such Pari Passu Indebtedness, in denominations of $2,000 principal amount and multiples of $1,000 in excess thereof, that may be purchased with an amount equal to the Excess Proceeds at an offer price in cash in an amount not less than 100% of the principal amount thereof, or, in the case of Pari Passu Indebtedness represented by securities sold at a discount, not less than the amount of the accreted value thereof at such time, plus accrued and unpaid interest to, but excluding, the purchase date, in accordance with the procedures set forth in this Indenture. In the event that the Issuer or any Restricted Subsidiary prepays any Pari Passu Indebtedness that is outstanding under a revolving credit or other committed loan facility pursuant to an Asset Sale Offer, the Issuer or such Restricted Subsidiary shall cause the related loan commitment to be reduced in an amount equal to the principal amount so prepaid. After the completion of an Asset Sale, the Issuer and the Restricted Subsidiaries may make an Asset Sale Offer prior to the time they are required to do so by the first sentence of this paragraph. If the Issuer or any Restricted Subsidiary completes such an Asset Sale Offer with respect to any Net Proceeds, the Issuer and the Restricted Subsidiaries shall be deemed to have complied with this Section 4.11 with respect to the application of such Net Proceeds (regardless of how much principal amount of Notes is tendered into such offer) and the amount of Excess Proceeds shall be reset to zero. If any Net Proceeds remain after consummation of an Asset Sale Offer, the Issuer and the Restricted Subsidiaries may use those Net Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness surrendered by holders thereof or lenders thereunder, collectively, exceeds the amount of Excess Proceeds, the Notes to be repurchased shall be selected in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed but are in global form, then by lot or otherwise in accordance with the procedures of DTC, or, if the Notes are not listed and not in global form on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, and the Issuer shall select Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of tendered Notes and Pari Passu Indebtedness.
(d) Pending the final application of any Net Proceeds pursuant to this covenant, the Issuer and the Restricted Subsidiaries may apply such Net Proceeds, the Company or any Restricted Subsidiary may Proceeds temporarily to reduce borrowings Indebtedness outstanding under the Credit Facilities or any other a revolving credit facility, if any, facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, Issuer shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.11 or Section 3.09, the Company or such Restricted Subsidiary Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.11 or Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Forestar Group Inc.), Indenture (Forestar Group Inc.), Indenture (Forestar Group Inc.)
Asset Sales. (a) The Company Covenant Parties will not, and will not permit any of its the Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale Sale, unless:
(1) the Company (a Covenant Party or the 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 (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleBorrower) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company a Covenant Party or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Aa) any liabilities (as shown on the Companysuch Covenant Party’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company a Covenant Party or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Loans, that are assumed by the transferee of any such assets;assets and for which the Covenant Parties and all of the Restricted Subsidiaries have been validly released by all creditors in writing,
(Bb) any securities, notes or other obligations securities received by the Company such Covenant Party or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company such Covenant Party or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the closing of such Asset Sale, and
(Cc) any Designated Noncash Non-cash Consideration received by the Company such Covenant Party or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess cash for purposes of $200.0 million).this provision and for no other purpose; and
(f3) Each Net Proceeds Offer will be sent to if such Asset Sale involves the record Holders as shown on the register disposition of Holders within 25 days following the Net Proceeds Offer Trigger DateCollateral, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days Covenant Party or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict Subsidiary has complied with the provisions of Section 3.09 or this Section 4.10, Agreement and the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceSecurity Documents.
Appears in 3 contracts
Samples: Senior Secured Loan Agreement (Nielsen Holdings B.V.), Senior Secured Loan Agreement (Nielsen Holdings B.V.), Senior Secured Loan Agreement (Nielsen CO B.V.)
Asset Sales. (a) The Company will not, and will not permit any of its the Company’s Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet or the notes thereto, of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary of the Company from such transferee that are, within 180 days are days, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 5.0 million and (by) 3.51.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(D) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary of the Company that is not subordinated Indebtedness; and
(DE) the fair market value (measured as of the date such Equity Interests or assets are received) Indebtedness of any Equity Interests Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any payment obligations with respect to such Indebtedness or assets any Guarantee of the kind referred to payment of such Indebtedness in clauses (2) or (4) of Section 4.10(b)connection with such Asset Sale.
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset SaleProceeds:
(1) to repayreduce Indebtedness and other Obligations under or pursuant to a Credit Facility or any Secured Indebtedness (unless the Notes are then secured by a priority or pari passu lien) of the Company or any Restricted Subsidiary and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem or repurchase to correspondingly reduce commitments with respect thereto;
(2) to reduce Indebtedness and other Obligations of a Restricted Subsidiary that is not a Guarantor (other than Subordinated Indebtedness) and other Obligations (other than Subordinated IndebtednessIndebtedness owed to the Company or a Restricted Subsidiary of the Company);
(23) to repay (i) Indebtedness or other Obligations of the Company that rank pari passu with the Notes or (ii) Indebtedness and other Obligations of a Guarantor that rank pari passu with such Guarantor’s Note Guarantee (other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company); provided that the Company shall equally and ratably redeem or repurchase the Notes pursuant to Section 3.07 hereof, or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date of repayment;
(4) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(35) to make a capital expenditure;
(46) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(57) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the foregoing. The Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to complied with the provisions set forth in clause (24), (35) or and (46) of this Section 4.10(b), as applicable, ) if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company (or the applicable Restricted Subsidiary) has entered into and not abandoned or rejected a binding agreement to consummate acquire all or substantially all of the assets of, or any reinvestment described Capital Stock of, another Permitted Business or to make a capital expenditure or acquire other assets that are not classified as current assets under GAAP and that are used or useful in clause (2), (3) a Permitted Business and that acquisition or (4) of this paragraph, and such reinvestment capital expenditure is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Pending Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute “Excess Proceeds.” When the final application aggregate amount of such Net ProceedsExcess Proceeds exceeds $15.0 million, within 30 days thereof, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after will make an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not Offer to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Notes and all holders of Indebtedness of the Company ranking that ranks pari passu with the Notes and containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase, prepay or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)of sales of assets to purchase, from the holders of such Pari Passu Indebtedness) prepay or redeem on a pro rata basis the maximum principal amount (in proportion to the respective principal amounts or accreted value, as if applicable) of Notes and such other pari passu Indebtedness (plus all accrued interest on the case Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may bebe purchased, prepaid or redeemed out of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereonand Additional Interest, if any, to but not including the Net date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on a relevant record date to receive interest due on an interest payment date occurring on or prior to the Purchase Date, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (plus, if applicableor required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount Company will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or accreted valuerequired to be prepaid or redeemed, as and thereafter the case may be, of Pari Passu Indebtedness) validly tendered by Trustee will select the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of tendered (with, in each case, such adjustments as may be deemed appropriate by the Notes andCompany or the Trustee, if as applicable, the principal amount so that only Notes in denominations of $1,000, or accreted valuean integral multiple of $1,000 in excess thereof, as the case may bewill be purchased, provided that any unpurchased portion of any such Pari Passu Indebtedness tendered and not withdrawna Note must be in a minimum denomination of $2,000). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.), Indenture (Acadia Healthcare Company, Inc.)
Asset Sales. (a) The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
unless (1a) the Company (Parent or the 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 (measured as determined in accordance with the definition of such term, the date results of which determination shall be set forth in an Officers’ Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed ofof and (b) other than for Qualifying Business Disposals, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration therefor received in the Asset Sale by the Company Parent or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes Equivalent Investments; provided, however, that the amount of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Ai) any liabilities (as shown on the CompanyParent’s or such Restricted Subsidiary’s most recent balance sheet) of the Company Parent or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets;
assets pursuant to a customary novation agreement that releases the Parent or such Restricted Subsidiary from further liability, (Bii) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted by the Company Parent or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
) and (Ciii) any Designated Noncash Non-Cash Consideration received by the Company Parent or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (determined in accordance with the definition of such term under Section 1.01, the results of which determination shall be set forth in an Officers’ Certificate delivered to the Trustee) taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) since the Issue Date covenant that is at the that time outstanding, not to exceed the greater of $20,000,000 (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b).
(b) 4.12. Within 365 60 days after the receipt of any Net Proceeds of any from an Asset Sale, such Net Proceeds may be applied (a) to redeem the Company or such Restricted SubsidiaryNotes (subject, for the avoidance of doubt, to the provisions of Section 3.07 hereof), (b) to repurchase Notes in an offer to purchase Notes and, at its optionthe option of the Parent, may apply any Pari Passu Secured Debt at an offer price in cash in an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all 100% of the assets principal amount thereof, plus accrued and unpaid interest thereon, to the date of another Related Businesspurchase, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, otherwise in accordance with the Related Business is or becomes a Restricted Subsidiary of the Company;
procedures set forth in Section 3.09 hereof (3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after that the Asset Sale aggregate principal amount of Notes tendered pursuant to such offer is less than the amount that generated the Net ProceedsCompany has offered to purchase, the Company has entered into and not abandoned or rejected a binding agreement to consummate may use any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such remaining Net Proceeds for general corporate purposes in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day ) or (as extended pursuant to the provisions in the preceding paragraphc) after an Asset Sale acquire (including by way of a purchase of assets or such earlier date, if any, as the Board of Directors a majority of the Company Voting Stock of a Person, by merger, consolidation or of otherwise) Strategic Assets; provided that if the Parent or such Restricted Subsidiary determines not has a bona fide intention in good faith to apply consummate an acquisition of Strategic Assets using the Net Proceeds relating to such of any Asset Sale as set forth prior to the end of the 60-day reinvestment period described in clause (1)this sentence and provides an Officers’ Certificate to the Trustee stating such intention, such 60-day reinvestment period shall automatically extend by an additional 305 days; provided further that if the assets sold or transferred in connection with any Asset Sale constitute Collateral, (2), (3), (4i) or (5) of Section 4.10(b) (each, a “any investment in Strategic Assets using the Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) thereof shall be applied carried out by the Company or a Guarantor, and (ii) the Parent shall pledge, or shall cause the applicable Obligor to pledge, in either case no later than 30 days after the consummation of such Restricted Subsidiary to make an offer to purchase (the “investment, any Strategic Assets acquired with such Net Proceeds Offer”) to secure the Notes on a date (first-ranking basis, subject to the “Agreed Security Principles. Any Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales that are not applied or invested as provided in clauses (the “Pari Passu Indebtedness”a), from (b) or (c) of this paragraph shall be deemed to constitute “Excess Proceeds.” Within 30 days of each date on which the holders aggregate amount of such Pari Passu Indebtedness) on a pro rata basis (in proportion Excess Proceeds exceeds $20,000,000, the Company shall commence an Asset Sale Offer pursuant to Section 3.09 hereof to purchase the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, that may be purchased out of Excess Proceeds at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may bedate of purchase, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the Net amount of such Excess Proceeds Offermultiplied by a fraction, Holders may elect to tender their the numerator of which is the aggregate principal amount of Notes in whole or in part in minimum denominations outstanding and the denominator of $2,000 or integral multiples which is the aggregate principal amount of $1,000 in excess thereof in exchange for cashNotes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer is less than the amount that the Company is required to purchase, the Company may use any remaining Excess Proceeds for general corporate purposes (plusincluding, if applicablefor the avoidance of doubt, to repay, redeem or repurchase Junior Debt) in any manner not prohibited by this Indenture. If the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered Notes surrendered by the Holders holders thereof and not withdrawn exceeds the Net Proceeds Offer Amountamount that the Company is required to purchase, the Trustee shall select the Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on basis, in accordance with the principal amount procedures of the Notes andapplicable depository, if applicableany (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $200,000, the principal amount or accreted valueintegral multiples of $1 in excess thereof, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawnshall be purchased). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offeran Asset Sale Offer to purchase, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer The Parent shall remain open for a period not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement that would place any restriction of 20 Business Days any kind (other than pursuant to law or such longer period as may be required by applicable law.
(gregulation) on the ability of the Company to make an Asset Sale Offer. The Company or the applicable Restricted Subsidiary, as the case may be, will 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 purchase of Notes pursuant to as a Net Proceeds result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10relating to the Asset Sale Offer, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 described above by virtue of such compliancethereof.
Appears in 3 contracts
Samples: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the any of its Restricted Subsidiary, as the case may be) Subsidiaries receives consideration (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiaries (considered together on a cumulative basis, with all consideration received by the Company or any of its Restricted Subsidiaries in respect of other Asset Sales consummated since the Measuring Date) is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 GuaranteeSubordinated Debt) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or indemnity agreement (or other legal documentation with the same effect) that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 90 days are after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);; and
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Additional Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses clause (2) or (4) of Section 4.10(b)) hereof.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale or, if the Company has entered into a binding commitment or commitments with respect to any of the actions described in clause (2) or (3) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset SaleSale and (y) 180 days after the entering into of such commitment or commitments, the Company or such one or more of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to the amount of such Net Proceeds from such Asset SaleProceeds:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); Senior Debt provided that the Company and its Restricted Subsidiaries will be deemed such repayment, redemption or repurchase may close up to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 45 days after the end of such 365-day period;
(2) to invest in or acquire Additional Assets; or
(3) to make capital expenditures in respect of a Permitted Business. Pending the final application of any Net Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Pending An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (3) of Section 4.10(b) hereof will constitute “Excess Proceeds.” Within ten Business Days after the final application aggregate amount of Excess Proceeds exceeds $30.0 million, the Issuers will 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 containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of Notes and such Net other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Liquidated Damages, if any, to but excluding the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or use those Excess Proceeds for any other revolving credit facility, if any, or purpose not otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to Section 4.10(e), on the 366th day (as extended pursuant to the provisions be prepaid or redeemed in the preceding paragraphconnection with) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate exceeds the amount of Net Proceeds which have not been applied on or before Excess Proceeds, the Trustee will select the Notes and such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either Indebtedness to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) be purchased on a pro rata basis (in proportion to the respective principal amounts or accreted value, except that any Notes represented by a Global Note will be selected by such method as the case Depositary or its nominee or successor may berequire or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Excess Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Datereset at zero.
(d) Notwithstanding the foregoingforegoing paragraphs of this Section 4.10, if at any time any non-cash consideration received the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed provisions 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 Section 4.14 and/or Section 5.01 hereof and the Net Proceeds thereof shall be applied in accordance with not by this Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, or compliance with this Section 4.10 would constitute a violation of any such laws or regulations, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(f) In the event that, pursuant to the preceding provisions of this Section 4.10, the Issuers are required to commence an Asset Sale Offer, the Issuers will follow the procedures specified below.
(1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness 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. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness 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.
(2) If the Purchase Date is on or after an interest 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 record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess thereof;
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a letter or electronic transmission setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000 will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(4) On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request from the Issuers, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 3 contracts
Samples: Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), 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 Note Guarantee) that are assumed by the transferee of any such assets;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 50.0 million and (b) 3.52.0% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraphSection 4.10(b)) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), an amount equal to such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) with respect to the Notes on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with an amount equal to the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 an amount equal to the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 100.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 100.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 100.0 million).
(f) Notwithstanding anything to the contrary, with respect to any Asset Sale consummated by a Foreign Subsidiary of the Company, the Company may elect to reduce the Net Proceeds Offer Amount by the amount of any Restricted Asset Sale Proceeds, provided, that the Company shall use its commercially reasonable efforts such that the distribution of any amounts constituting Restricted Asset Sale Proceeds solely pursuant to clause (a) of the definition thereof (if such amounts were distributed), or the inclusion of any amounts constituting Restricted Asset Sale Proceeds solely pursuant to clause (a) of the definition thereof in the Net Proceeds Offer Amount, would not result in adverse tax consequences of more than a de minimis amount to the Company and its Subsidiaries (as reasonably determined by the Company), such that such amounts would not constitute Restricted Asset Sale Proceeds. For the avoidance of doubt, in no event shall this Section 4.10 require cash at Foreign Subsidiaries to be repatriated.
(g) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gh) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Herbalife Nutrition Ltd.), Indenture (Herbalife Nutrition Ltd.), Indenture (Herbalife Nutrition Ltd.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (or the 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 Fair Market Value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleIssuers) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Subsidiary Guarantee) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.53.0% of Consolidated Total Assets and $35 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary of the Company may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repayrepay Senior Indebtedness, prepaySecured Indebtedness, redeem including Indebtedness under the Credit Agreement (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) or repurchase Indebtedness of a Foreign Subsidiary or Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness, the Company shall equally and ratably reduce Obligations under the Securities by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);Indebtedness owed to the Company or an Affiliate of the Company,
(2ii) to acquire all make an investment in any one or substantially all more businesses (provided that if such investment is in the form of the assets acquisition of another Related BusinessCapital Stock of a Person, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;
(3) to make a ), assets, or property or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; , or
(5iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a combination Person, such acquisition results in such Person becoming a Restricted Subsidiary of prepayments and investments permitted by the foregoing clauses (1Company), (2), (3properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (4iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that (x) such investment is consummated within 545 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and its Restricted Subsidiaries (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to have applied such Net be Excess Proceeds pursuant to clause (2as defined below), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the “Net aggregate amount of Excess Proceeds Offer”) on a date (exceeds $15 million, the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to Issuers shall make an offer to repurchase or all Holders of Securities (and, at the option of the Issuers, to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”), from ) to purchase the holders maximum principal amount of Securities (and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value), as the case that is at least $2,000 and an integral multiple of $1,000 that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of thereof (or, in the Notes (or event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the principal amount or accreted valuevalue thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Issuers shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $15 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes Securities (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and such Pari Passu Indebtedness) tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company Issuers may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 3 contracts
Samples: Indenture (Rexnord Corp), Indenture (OEI, Inc.), Indenture (Rexnord Corp)
Asset Sales. (a) The Company Suburban Propane will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Suburban Propane (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Suburban Propane or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(Ai) any liabilities (liabilities, as shown on the Company’s or such Restricted SubsidiarySuburban Propane’s most recent consolidated balance sheet) , of the Company Suburban Propane or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assetsassets pursuant to a customary novation agreement that releases Suburban Propane or such Restricted Subsidiary from further liability;
(Bii) any securities, notes or other obligations received by the Company Suburban Propane or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted after the date of consummation of such Asset Sale by the Company Suburban Propane or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(Ciii) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b10.11(b); and
(iv) any Designated Non-Cash Consideration received by Suburban Propane or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iv) that is at such time outstanding, not to exceed an amount equal to the greater of (x) $50.0 million and (y) 5.0% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. The 75% limitation in clause (2) above will not apply to any Asset Sale in which the cash portion of the consideration received is equal to or greater than the after-tax proceeds would have been had the Asset Sale complied with the 75% limitation.
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, Suburban Propane (or the Company or such applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to the those Net Proceeds from such Asset SaleProceeds:
(1) to repay, prepay, redeem repay Indebtedness of Suburban Propane under a Credit Facility or repurchase to repay any Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)of any Restricted Subsidiary of Suburban Propane;
(2) to acquire, or commit to acquire within 90 days thereof, all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanySuburban Propane;
(3) to make a capital expenditure;; and/or
(4) to acquire, or commit to acquire within 90 days thereof, other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(5) a combination provided that, with respect to any portion of prepayments and investments permitted by the foregoing Net Proceeds relating to clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceedsabove, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 360-day period provided above shall be extended by an additional 180 days if by not later than the 360th day after the end of such 365-day period.
(c) Pending the final application receipt of such Net Proceeds, the Company Issuers or a Restricted Subsidiary, as applicable, have entered into a binding commitment with a Person other than an Affiliate of the Issuers to make an investment of the type referred to in any of such clauses in the amount of such Net Proceeds. Pending the final application of any Net Proceeds, Suburban Propane or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. Subject to .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(e)10.11(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after Issuers will make an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not Offer to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all Holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Supplemental Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if anyinterest, to the Net date of purchase, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders the Issuers may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange use those Excess Proceeds for cashany purpose not otherwise prohibited by this Supplemental Indenture. To the extent that If the aggregate principal amount of Notes (plus, if applicableand other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by Notes and the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Issuers will select such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on basis, provided, that Notes held in the principal amount form of global certificates will be selected in accordance with the Notes and, if applicable, the principal amount or accreted value, as the case may be, procedures of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this IndentureDTC. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, Issuers 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.1010.11 and Section 11.10 of this Supplemental Indenture, the Company or such Restricted Subsidiary shall Issuers will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its their obligations under Section 3.09 or this Section 4.10 10.11 and Section 11.10 of this Supplemental Indenture by virtue of such complianceconflict.
Appears in 3 contracts
Samples: Third Supplemental Indenture (Suburban Propane Partners Lp), Second Supplemental Indenture (Suburban Propane Partners Lp), First Supplemental Indenture (Suburban Propane Partners Lp)
Asset Sales. (a) The Company will OI Group shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company OI Group (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved ;
(2) such Fair Market Value is determined in good faith by OI Group and a certification to that effect is set forth in an Officers’ Certificate delivered to the Company’s Board of DirectorsTrustee; and
(23) at least 75% of the consideration therefor received in the Asset Sale by the Company OI Group or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the CompanyOI Group’s or such Restricted Subsidiary’s most recent balance sheet) of the Company OI Group or any Restricted Subsidiary of OI Group (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee of the Notes) that are assumed by the transferee of any such assetsassets which assumption releases OI Group or such Restricted Subsidiary from further liability;
(Bb) any securities, notes or other obligations received by the Company OI Group or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted by the Company OI Group or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);; and
(Cc) any Designated Noncash Consideration received by the Company OI Group or any Restricted Subsidiary of OI Group in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) provided, that the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind 75% limitation referred to in clauses clause (23) above shall not apply to any Asset Sale in which the cash portion of such consideration received therefor on an after-tax basis, determined in accordance with clause (3) above, is equal to or (4) of Section 4.10(b).
(b) greater than what the after-tax net proceeds would have been had such transaction complied with such 75% limitation. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company OI Group or such Restricted Subsidiary, Subsidiary may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay senior Indebtedness of the Company or any Guarantor and, prepayif the senior Indebtedness of the Company or any Guarantor repaid is revolving credit Indebtedness, redeem to correspondingly reduce commitments with respect thereto, if the terms of such revolving credit Indebtedness would require such a commitment reduction; provided, however, that a non-Guarantor Restricted Subsidiary may use the Net Proceeds from an Asset Sale to repay senior Indebtedness of OI Group or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)any Restricted Subsidiary of OI Group;
(2) to make payments required to be made with respect to the outstanding OI Inc. Senior Notes;
(3) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the Company;
(3) to make Voting Stock of, a capital expenditurePermitted Business;
(4) to acquire other assets (other than securities make a capital expenditure in or current assets) that will be is used or useful in a Related Permitted Business;
(5) to acquire other long-term assets in or that are used or useful in a Permitted Business; or
(56) to make an Investment in any one or more businesses (provided that such Investment in any business may be in the form of the acquisition of Capital Stock so long as it results in OI Group or a combination Restricted Subsidiary of prepayments and investments permitted by OI Group, as the foregoing clauses (1case may be, owning a majority of the Capital Stock of such business), (2)properties or assets that replace the businesses, (3) properties and (4)assets that are the subject of such Asset Sale; provided provided, however, that any such business, properties and assets of OI Group or a Guarantor that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) subject of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the an Asset Sale are invested in one or more businesses, properties or assets that generated constitute or are owned or shall be owned by a Guarantor or a Restricted Subsidiary that becomes a Guarantor. Notwithstanding the Net Proceedsforegoing, the Company has entered into and not abandoned or rejected a binding agreement with respect to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, Asset Sale by the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facilityGuarantor, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended may only be applied pursuant to items (1) or (6) above and, to the provisions in extent such Net Proceeds are applied to, or with respect to, the preceding paragraph) after an Asset Sale Company, a Guarantor or such earlier date, if any, as the Board of Directors of the Company a Person or of such a Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1)that becomes a Guarantor, (2), items (3), (4) or (5) above. Pending the final application of Section 4.10(b) (eachany such Net Proceeds, a “OI Group or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds Offer Trigger Date”), such 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 shall constitute “Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $25.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of any Notes and all Holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales of sales of assets (including the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Existing Senior Notes and any such Pari Passu Indebtednessthe 7 3/4% Senior Secured Notes due 2011) an aggregate to purchase the maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonand Liquidated Damages, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoingdate of purchase, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 and shall be deemed to constitute payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale hereunder and Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use such Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Owens Illinois Group Inc), Indenture (Owens Illinois Inc /De/)
Asset Sales. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company Parent (or the its Restricted SubsidiarySubsidiaries, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and;
(2ii) at least 75% of the consideration received in the Asset Sale by the Company Parent or such its Restricted Subsidiary Subsidiaries is in the form of cash or Cash Equivalents. For purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”ii), each of the following shall will be deemed to be cash:
(A1) except in the case of a Sale of Notes Priority Collateral, any liabilities (liabilities, as shown on the Company’s or such Restricted SubsidiaryParent’s most recent consolidated balance sheet) , of the Company Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary assumption or similar agreement;
(B2) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Parent or such any Restricted Subsidiary into cash (or Cash Equivalents within 180 days of receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C3) any Designated Noncash Consideration received by the Company Parent or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valuea Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C3) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 15.0 million and (by) 3.51.0% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D4) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses clause (2i) or (4iii) of Section 4.10(b).
4.12(b) (bin the case of a Sale of Notes Priority Collateral) Within 365 days after the receipt or clause (ii) or (iv) of Section 4.12(c) (in any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4case); provided that that, (A) to the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds extent any cash, any property or assets are received pursuant to clause clauses (2), (3) or (4) of this Section 4.10(b)4.12(a)(ii) in respect of a Sale of Notes Priority Collateral, such cash, property or assets are pledged to secure the Notes as applicableNotes Priority Collateral and (B) that all Net Proceeds from an Asset Sale, if and to or Casualty or Condemnation Event, of, Notes Priority Collateral are deposited into the extent thatCollateral Proceeds Account no later than two Business Days following receipt thereof; provided further, within 365 that all Net Proceeds from an Asset Sale, or Casualty or Condemnation Event, of, Notes Priority Collateral are deposited into the Collateral Proceeds Account no later than two Business Days following receipt thereof.
(b) Within 360 days after the Asset receipt of any Net Proceeds from any Sale that generated of Notes Priority Collateral or a Casualty or Condemnation Event in which Net Proceeds are received in respect of the condemnation, destruction, damage or loss of any Notes Priority Collateral, Parent or any Restricted Subsidiary may apply those Net ProceedsProceeds at its option:
(i) to acquire all or substantially all of the assets of, the Company has entered into or any Capital Stock of, a Permitted Business (including, without limitation, Vessels, equipment and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2inventory), if, after giving effect to any such acquisition, such Permitted Business is owned by the Issuer or any Guarantor and such Permitted Business includes Notes Priority Collateral with a Fair Market Value at least equal to the Fair Market Value of the Notes Priority Collateral disposed of in the applicable Sale of Notes Priority Collateral;
(3ii) or to make capital expenditures on assets that constitute Notes Priority Collateral;
(4iii) to acquire (including, without limitation, through a long-term lease of this paragrapha Vessel in accordance with past practice) other capital assets that are not current assets (including, without limitation, Vessels, equipment and inventory) that are pledged as Notes Priority Collateral and designated to the Trustee as such, and such reinvestment is thereafter completed within 180 days after that are used or useful in a Permitted Business; and/or
(iv) to permanently repay, prepay, repurchase or otherwise retire for value any Indebtedness secured by Liens on the end of such 365-day periodNotes Priority Collateral that rank higher than the Note Liens.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale (other than from a Sale of Notes Priority Collateral), Parent or any Restricted Subsidiary may apply such Net Proceeds at its option:
(i) (1) in the case of Net Proceeds from any Asset Sale of assets of any non-Guarantor, to repay Indebtedness of such non-Guarantor, (2) to repay ABL Obligations or (3) to permanently repay, prepay, repurchase or otherwise retire for value any Indebtedness secured by Liens on the assets subject to such Asset Sale, which Liens rank higher in priority than the Note Liens;
(ii) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business (including, without limitation, Vessels, equipment and inventory), if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Guarantor;
(iii) to make a capital expenditure; and/or
(iv) to acquire other assets that are used or useful in a Permitted Business.
(d) Pending the final application of such any Net ProceedsProceeds (other than Net Proceeds from any Sale of Notes Priority Collateral or a Casualty or Condemnation Event directly attributable to any Notes Priority Collateral), the Company Parent or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not Any binding commitment to apply the Net Proceeds relating to such Asset Sale as set forth invest in accordance with clause (1i), (2ii) or (iii) of Section 4.12(b), (3in the case of Net Proceeds of Notes Priority Collateral) or clause (ii), (4iii) or (5iv) of Section 4.10(b4.12(c) (each, in the case of any other Net Proceeds) shall be treated as a “permitted final application of Net Proceeds Offer Trigger Date”from the date of such commitment so long as Parent or any Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment; provided that if such commitment is later canceled, terminated or otherwise not consummated after the 360-day period for any reason, then such Net Proceeds shall constitute “Excess Proceeds” (as defined in Section 4.12(e)).
(e) Any Net Proceeds from Asset Sales (including Sales of Notes Priority Collateral) or Casualty or Condemnation Events related to Notes Priority Collateral that are not applied or invested as provided in Sections 4.12(b) or 4.12(c) will constitute “Excess Proceeds.” In addition, any Net Proceeds received by Parent or its Restricted Subsidiaries in excess of $60.0 million in the aggregate after the Issue Date that are not applied under clause (iv) of Section 4.12(c) (in the case of Net Proceeds in respect of Notes Priority Collateral) or under clause (i) of Section 4.12(b) (in the case of other Net Proceeds) shall be deemed to be Excess Proceeds, to the extent not applied to such permanent repayment, prepayment, repurchase or other retirement for value within 60 days after receipt thereof (which time period shall be extended during the pendency of any offers using such Net Proceeds that are required to be conducted by the “Asset Sale” or similar provisions of any Senior Lien Debt or an ABL Facility). When the aggregate amount of Net Excess Proceeds which have not been applied on or before exceeds $10.0 million, provided, that in case of any Vessel Construction Contract such Net Proceeds Offer Trigger Date as permitted in clauses (1)shall only constitute Excess Proceeds to the extent not reinvested upon the expiration of such Vessel Construction Contract, (2)within 30 days thereof, (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to Issuer will make an offer to purchase (the a “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms holders of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such any Permitted Additional Pari Passu Indebtedness) on a pro rata basis (Obligations containing provisions similar to those set forth in proportion this Section 4.12 with respect to asset sales to purchase the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and Permitted Additional Pari Passu IndebtednessObligations (plus all accrued interest and the amount of all fees and expenses, including premiums, incurred in connection therewith) equal to that may be purchased out of the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereoninterest, if any, to to, but not including the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed date 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amountpurchase, and not just the amount will be payable in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million)cash.
(f) Each Net If any Excess Proceeds Offer will be sent to the record Holders as shown on the register remain after consummation 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. Upon receiving notice of the Net Proceeds Offer, Holders those Excess Proceeds will be released from the Collateral Proceeds Account and Parent and its Restricted Subsidiaries may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange use those Excess Proceeds for cashany purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of and Permitted Additional Pari Passu Indebtedness) validly Obligations tendered by the Holders thereof and not withdrawn exceeds the into such Net Proceeds Offer Amountexceeds the amount of Excess Proceeds, the Trustee will select the Notes of tendering Holders (and, if applicable, and Permitted Additional Pari Passu Indebtedness tendered by the holders thereof) will be purchased Obligations on a pro rata basis (based on the principal amount with such adjustments as may be needed so that only Notes in minimum amounts of the Notes and, if applicable, the principal amount or accreted value, as the case may be, $1,000 and integral multiples of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture$1,000 will be purchased. Upon completion of any such each Net Proceeds Offer, the amount of Excess Proceeds will be reset at zero (and to the extent such Net Proceeds are held in the Collateral Proceeds Account, such Net Proceeds shall be released to the Issuer). If the Issuer makes a Net Proceeds Offer Amount prior to the 360-day deadline specified in the third or fourth paragraph of this covenant, as applicable, with respect to any Net Proceeds, the Issuer’s obligations with respect to such Net Proceeds under this covenant shall be reset at zero. A deemed satisfied after completion of such Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable lawOffer.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.12, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.12 by virtue of such compliance.
(h) For purposes of this Section 4.12, (x) any Additional Notes shall be deemed to be Notes and not Permitted Additional Pari Passu Obligations and (y) the Net Cash Proceeds attributable to the sale of (i) Notes Priority Collateral consisting of Equity Interests of a Person that is not a Guarantor shall be deemed to be equal to the equity value of such Equity Interests and (ii) a group of assets consisting of both Notes Priority Collateral and assets that are not Notes Priority Collateral shall be deemed to be Net Cash Proceeds from Notes Priority Collateral and such other assets, respectively, based on the Fair Market Value of the Notes Priority Collateral and such other assets (as determined in good faith by the Issuer, which determination shall be conclusive absent manifest error).
Appears in 2 contracts
Samples: Indenture (Horizon Lines, Inc.), Indenture (Horizon Lines, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms unsecured or subordinated in right of payment or as to Lien priority to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets 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 any such Restricted Subsidiary from such transferee that are within 180 days are after such Asset Sale, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(C) any stock or assets of the kind referred to in Section 4.10(b)(2) or (4) hereof; and
(D) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstandingD), not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration5.0 million, with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset SaleProceeds:
(1) (a) to repay, prepay, redeem or repurchase repay Indebtedness (other than Subordinated Indebtedness) and other Obligations under the Existing Indenture or the Senior Credit Facility and to correspondingly permanently reduce any revolving commitments with respect thereto and (b) in the case of an Asset Sale of the asset or property of a Foreign Restricted Subsidiary of the Company, to repay Indebtedness and other than Subordinated Indebtedness)Obligations under the agreements governing Permitted Debt described in clause (16) of the definition thereof;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Equity Interestsacquisition, the Related Permitted Business is or becomes a Restricted Subsidiary or a line of business of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; orand
(5) a any combination of prepayments and investments permitted by the foregoing foregoing; provided that in the case of clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2)) above, (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final commitment shall be treated as a permitted application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to from the date of such Asset Sale commitment so long as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted valueSubsidiary, as the case may be, enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment and, in the Notes and event any such Pari Passu Indebtednesscommitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds must be applied as set forth herein or if such cancellation or termination occurs later than the 360-day period referred to below, shall constitute Excess Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” Within 15 days after the aggregate amount of Excess Proceeds exceeds $12.5 million, the Company will make an aggregate offer (an “Asset Sale Offer”) to all Holders of Notes to purchase the maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as that may be purchased with the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount plus accrued and unpaid 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 may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis for definitive Notes but subject to the procedures of the Notes Depositary for Global Notes. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(or 100% d) The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the principal amount Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes or, if less than the Offer Amount has been tendered, all Notes 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. If the Purchase Date is on or accreted valueafter an interest record date and on or before the related interest payment date, any accrued and unpaid interest and premium, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, which contains all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1.00 only; provided that no Notes in denominations of $2,000 or less may be redeemed or purchased in part, or if a PIK Payment has occurred, no Notes of $1.00 or less shall be redeemed or purchased in part;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Pari Passu Indebtedness), plus accrued and unpaid interest thereonHolder is withdrawing his election to have such Note purchased;
(8) that, if anythe aggregate principal amount of Notes surrendered by the Holders exceeds the Offer Amount, the Trustee will select the Notes to be purchased on a pro rata basis; and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Company will, to the Net Proceeds extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Payment Date.
(d) Notwithstanding Amount of Notes or portions thereof tendered pursuant to the foregoingAsset Sale Offer, or if at any time any non-cash consideration received less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company, the Depositary or any Restricted Subsidiarythe Paying Agent, as the case may be, will promptly (but in connection with any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale is converted into Offer on the Purchase Date. If less than all of the Notes are to be purchased in an Asset Sale Offer at any time, the Trustee will select Notes for purchase on a pro rata basis, by lot or sold or otherwise disposed of for cash (other than interest received method in any case the Trustee considers appropriate, with respect to Global Notes, subject to the rules and procedures of the Depositary unless otherwise required by law or applicable stock exchange requirements, not less than 30 nor more than 60 days prior to the Purchase Date by the Trustee from the outstanding Notes not previously purchased. The Trustee will promptly notify the Company in writing of the Notes selected for purchase and, in the case of any Note selected for partial purchase, the principal amount thereof to be purchased. Notes and portions of Notes selected will be in amounts of $1,000 or whole multiples of $1.00; provided that if all of the Notes of a Holder are to be purchased, the entire outstanding amount of Notes held by such non-cash consideration)Holder shall be purchased; provided, further, that no Notes in denominations of $2,000 or less may be purchased in part or if a PIK Payment has occurred, no Notes of $1.00 or less shall be purchased in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes purchased also apply to portions of Notes purchased. No later than 10:00 a.m. Eastern time on the Purchase Date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of and accrued interest or premium, if any, on all Notes to be purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the purchase price of, and accrued interest or premium, if any, on all Notes to be purchased. If the Company complies with the provisions of the preceding paragraph, on and after the Purchase Date, interest will cease to accrue on the Notes or the portions of Notes purchased. If a Note is purchased on or after an interest record date but on or prior to the related interest payment date, then such conversion or disposition any accrued and unpaid interest shall be deemed paid to constitute an Asset Sale hereunder and the Net Proceeds thereof Person in whose name such Note was registered at the close of business on such record date. If any Note purchased is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be applied paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in accordance with each case at the rate provided in the Notes and in Section 4.104.01 hereof.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (A. M. Castle & Co.), Indenture (Total Plastics, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an engage in any Asset Sale unless:
unless (1i) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary for such Asset Sale is not less than the fair market value of the assets sold evidenced by a resolution of the board of directors of such entity set forth in an Officers' Certificate delivered to the form Trustee and (ii) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents. For Equivalents (for purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”ii), each of the following shall be deemed to be cash:
cash and Cash Equivalents includes (A1) any liabilities (as shown on reflected in the Company’s or such Restricted Subsidiary’s most recent 's consolidated 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 Note Guarantee) that are assumed by the any transferee of any such assets;
assets or other property in such Asset Sale, and where the Company or the relevant Restricted Subsidiary is released from any further liability in connection therewith with respect to such liabilities, (B2) any securities, notes or other similar obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted of the consummation of the related Asset Sale by the Company or such Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net cash proceeds or the Cash Equivalents (net of related costs) received in that upon such conversion);
) and (C3) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in such the Asset Sale having an aggregate fair market value, as determined by the Board of the Company, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of of:
(aA) $300.0 million and 10 million; and
(bB) 3.515% of Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value of each item of such Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, If the Company or any Restricted Subsidiary may temporarily reduce borrowings engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (i) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Credit Facilities or any other revolving credit facilityAgreement (and to correspondingly reduce the commitments, if any, with respect thereto) or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board permanent repayment of Directors other Senior Indebtedness of the Company or a Restricted Subsidiary, provided that the repayment of such Restricted Subsidiary determines not to apply any Indebtedness incurred under the Net Proceeds Credit Agreement in connection with the acquisition of any Facility with the proceeds of any subsequent Sale and Leaseback Transaction relating to such Facility shall not be required to result in the permanent reduction of the amounts outstanding under the Credit Agreement or correspondingly permanently reduce the commitments thereunder, or (ii) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale as set forth or in clause (1), (2), (3), (4) or (5) properties and assets that will be used in the businesses of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such its Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted valueSubsidiaries, as the case may be, of existing on the Notes and Reference Date or in businesses the same, similar or reasonably related thereto. If any such Pari Passu Indebtednesslegally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of such termination or within 12 months of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical contained in such clause (ii)) above. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in a manner that is not prohibited by this Indenture. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph shall constitute "EXCESS PROCEEDS".
(c) When the aggregate amount of Excess Proceeds exceeds $10 million, the Company will, within 30 days thereafter, make an aggregate offer to purchase (an "EXCESS PROCEEDS OFFER") from all Holders of Notes on a pro rata basis, in accordance with the procedures set forth in this Indenture, the maximum principal amount (expressed as a multiple of $1,000) of Notes (plusthat may be purchased with the Excess Proceeds, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer at a purchase price in any Net Proceeds Offer shall be cash equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued interest and unpaid interest thereonLiquidated Damages, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale date such offer to purchase 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cashconsummated. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer such offer to purchase is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net Proceeds Offer Amount deficiency for general corporate purposes or for any other purpose purposes. If the aggregate principal amount of Notes validly tendered and not prohibited withdrawn by this Indentureholders thereof exceeds the Excess Proceeds, the Notes to be purchased will be selected on a pro rata basis. Upon completion of any such Net Proceeds Offeroffer to purchase, the Net amount of Excess Proceeds Offer Amount shall will be reset at to zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Note Purchase Agreement (Jw Childs Equity Partners Ii Lp), Note Purchase Agreement (Signal Medical Services)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (Company, or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directors; and
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company Company, or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheetsheet or in the notes thereto) 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 GuaranteeSecurities) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.5% of Consolidated Total Assets or $100.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b)4.06.
(b) Within 365 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repaypermanently reduce Obligations under the Credit Agreement (and, prepayin the case of revolving Obligations, redeem to correspondingly reduce commitments with respect thereto) or repurchase other Senior Indebtedness, including the Senior Notes, or Pari Passu Indebtedness (other than Subordinated provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness) , it shall equally and other ratably reduce Obligations under the Securities by making an offer (other than Subordinated Indebtedness);
(2in accordance with the procedures set forth below for an Asset Sale Offer) to acquire all or substantially all Holders to purchase at a purchase price equal to 100% of the assets of another Related Businessprincipal amount thereof, or to acquire any Equity Interests of another Related Businessplus accrued and unpaid interest and additional interest, if, after giving effect to any such acquisition of Equity Interestsif any, the Related Business is pro rata principal amount of Securities) or becomes Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;,
(3ii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of such business), or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; or, and/or
(5iii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a combination Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of prepayments and investments permitted by the foregoing clauses (1such business), (2), (3) properties or assets that replace the properties and (4); provided assets that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end subject of such 365-day period.
(c) Asset Sale. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute "Excess Proceeds." When the “Net aggregate amount of Excess Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Dateexceeds $20.0 million, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to shall make an offer to repurchase or all Holders of Securities (an "Asset Sale Offer") to otherwise repurchase, redeem or repay such Indebtedness with purchase the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusSecurities, if applicablethat is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued and unpaid interest thereonand additional interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $20.0 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) Securities tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e) below. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the paying agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06 above.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $1,000 or less shall be purchased in part.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder's registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that is to be purchased. So long as the Securities are listed on the Luxembourg Stock Exchange, such notices shall also be published in a Luxembourg newspaper of general circulation.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancelation of the original Security. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 2 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (or the 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 Fair Market Value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets;assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received after the Existing First-Lien Issue Date pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.53.0% of Consolidated Total Assets and $45.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary of the Company may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) (y) to repayrepay Indebtedness constituting First-Priority Lien Obligations (and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem to correspondingly reduce commitments with respect thereto), the Securities, any Indebtedness of a Foreign Subsidiary or repurchase Pari Passu Indebtedness; provided that if any Issuer or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness (other than Subordinated Indebtednessany First-Priority Lien Obligations), the Issuers shall equally and ratably reduce Obligations under the Securities through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) and/or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and other Obligations (unpaid interest and Additional Interest, if any, of the pro rata principal amount of Securities or Indebtedness of a Restricted Subsidiary that is not an Issuer or a Guarantor, in each case other than Subordinated IndebtednessIndebtedness owed to the Company or an Affiliate of the Company or (z) to repay ABL Obligations, to the extent the Net Proceeds are from an Asset Sale of ABL Priority Collateral (including indirect Asset Sales of ABL Priority Collateral due to the sale of the Capital Stock of a Person);
(2ii) to acquire all make an investment in any one or substantially all more businesses (provided that if such investment is in the form of the assets acquisition of another Related BusinessCapital Stock of a Person, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;
(3) to make a ), assets, or property or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; orand/or
(5iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a combination Person, such acquisition results in such Person becoming a Restricted Subsidiary of prepayments and investments permitted by the foregoing clauses (1Company), (2), (3properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (4iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that (x) such investment is consummated within 545 days after receipt by the Company or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and its Restricted Subsidiaries (y) if such investment is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to have applied such Net be Excess Proceeds pursuant to clause (2as defined below), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not otherwise prohibited by this Indenture. Subject to Section 4.10(e), on Any Net Proceeds received after the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Existing First-Lien Issue Date from any Asset Sale that are not applied as provided and within 365 days after the Company’s or such earlier date, if any, as the Board of Directors any Restricted Subsidiary of the Company or Company’s receipt of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such of any Asset Sale as set forth in clause (1), (2), (3), (4) or (5) it being understood that any portion of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the “Net aggregate amount of Excess Proceeds Offer”) on a date (exceeds $15.0 million, the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to Issuers shall make an offer to repurchase or all Holders of Securities (and, at the option of the Issuers, to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”), from ) to purchase the holders maximum principal amount of Securities (and such Pari Passu Indebtedness) on a pro rata basis (), that is at least $2,000 and an integral multiple of $1,000 in proportion to the respective principal amounts or accreted value, as the case excess thereof that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of thereof (or, in the Notes (or event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the principal amount or accreted valuevalue thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Indenture. The Issuers shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $15.0 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes Securities (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and such Pari Passu Indebtedness) tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company Issuers may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A The Company and its Restricted Subsidiaries may make an Asset Sale Offer under this Section 4.06 using Net Proceeds Offer prior to the time any such Net Proceeds become Excess Proceeds, in which case such Net Proceeds shall remain open for a period of 20 Business Days or such longer period as may be deemed to have been applied within the time frame required by applicable lawthis Section 4.06.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements and the requirements of the Depository, if applicable); provided that no Securities of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (NewPage Holdings Inc.), Indenture (Verso Paper Corp.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1i) the The Company (or the Restricted Subsidiary, as the case may be) , receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ;
(ii) the fair market value is determined by the Company’s Board of DirectorsDirectors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(2iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents, except to the extent the Company is undertaking a Permitted Asset Swap. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)next paragraph, each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s '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;assets and the lender releases the Company or such Restricted Subsidiary from further liability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary within 90 days into cash (or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Consideration received by . Notwithstanding the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceedsforegoing, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject shall be permitted to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after consummate an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu without complying with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.foregoing if:
Appears in 2 contracts
Samples: Supplemental Indenture (Entercom Radio LLC), First Supplemental Indenture (Entercom Communications Corp)
Asset Sales. (a) The Company will OI Group shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company OI Group (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved ;
(2) such Fair Market Value is determined in good faith by OI Group and a certification to that effect is set forth in an Officers’ Certificate delivered to the Company’s Board of DirectorsTrustee; and
(23) at least 75% of the consideration therefor received in the Asset Sale by the Company OI Group or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the CompanyOI Group’s or such Restricted Subsidiary’s most recent balance sheet) of the Company OI Group or any Restricted Subsidiary of OI Group (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee of the Notes) that are assumed by the transferee of any such assetsassets which assumption releases OI Group or such Restricted Subsidiary from further liability;
(Bb) any securities, notes or other obligations received by the Company OI Group or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted by the Company OI Group or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);; and
(Cc) any Designated Noncash Consideration received by the Company OI Group or any Restricted Subsidiary of OI Group in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) provided, that the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind 75% limitation referred to in clauses clause (23) above shall not apply to any Asset Sale in which the cash portion of such consideration received therefore on an after-tax basis, determined in accordance with clause (3) above, is equal to or (4) of Section 4.10(b).
(b) greater than what the after-tax net proceeds would have been had such transaction complied with such 75% limitation. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company OI Group or such Restricted Subsidiary, Subsidiary may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay senior Indebtedness of the Company or any Guarantor and, prepayif the senior Indebtedness of the Company or any Guarantor repaid is revolving credit Indebtedness, redeem to correspondingly reduce commitments with respect thereto, if the terms of such revolving credit Indebtedness would require such a commitment reduction; provided, however, that a non-Guarantor Restricted Subsidiary may use the Net Proceeds from an Asset Sale to repay senior Indebtedness of OI Group or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)any Restricted Subsidiary of OI Group;
(2) to make payments required to be made with respect to the outstanding OI Inc. Senior Notes;
(3) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the Company;
(3) to make Voting Stock of, a capital expenditurePermitted Business;
(4) to acquire other assets (other than securities make a capital expenditure in or current assets) that will be is used or useful in a Related Permitted Business;
(5) to acquire other long-term assets in or that are used or useful in a Permitted Business; or
(56) to make an Investment in any one or more businesses (provided that such Investment in any business may be in the form of the acquisition of Capital Stock so long as it results in OI Group or a combination Restricted Subsidiary of prepayments and investments permitted by OI Group, as the foregoing clauses (1case may be, owning a majority of the Capital Stock of such business), (2)properties or assets that replace the businesses, (3) properties and (4)assets that are the subject of such Asset Sale; provided provided, however, that any such business, properties and assets of OI Group or a Guarantor that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) subject of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the an Asset Sale are invested in one or more businesses, properties or assets that generated constitute or are owned or shall be owned by a Guarantor or a Restricted Subsidiary that becomes a Guarantor. Notwithstanding the Net Proceedsforegoing, the Company has entered into and not abandoned or rejected a binding agreement with respect to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, Asset Sale by the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facilityGuarantor, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended may only be applied pursuant to items (1) or (6) above and, to the provisions in extent such Net Proceeds are applied to, or with respect to, the preceding paragraph) after an Asset Sale Company, a Guarantor or such earlier date, if any, as the Board of Directors of the Company a Person or of such a Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1)that becomes a Guarantor, (2), items (3), (4) or (5) above. Pending the final application of Section 4.10(b) (eachany such Net Proceeds, a “OI Group or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds Offer Trigger Date”), such 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 shall constitute “Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $25.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of any Notes and all Holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales of sales of assets (including the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Existing Senior Notes and any such Pari Passu Indebtednessthe 8 1/4% Senior Notes due 2013 offered concurrently herewith) an aggregate to purchase the maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonand Liquidated Damages, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoingdate of purchase, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 and shall be deemed to constitute payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale hereunder and Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use such Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Fourth Supplemental Indenture (Owens Illinois Group Inc), Fourth Supplemental Indenture (Owens Illinois Inc /De/)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets disposed of or the Equity Interests of the Restricted Subsidiary issued or sold or otherwise disposed of, of (as approved in good faith determined by an Officer or otherwise as determined by the Company’s Board of DirectorsDirectors of the Company if such fair market value exceeds $50.0 million); and
and (2ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
cash or Cash Equivalents: (Aa) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary sheet (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;
assets or terminated by the holder of such liability and the Company or such Restricted Subsidiary is released from further liability; (Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 90 days after receipt, to the extent of the cash or Cash Equivalents received in that conversion);
; (Cc) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstandinghas not been converted to cash, not to exceed the greater of (a) $300.0 75.0 million and (b) 3.51.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
and (Dd) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Replacement Assets. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection may apply an amount equal to such Net Proceeds at its option:
(1) to permanently reduce (and permanently reduce commitments with any Asset Sale is converted into or sold or otherwise disposed respect thereto): (i) Secured Indebtedness under the Credit Agreement and (ii) Secured Indebtedness of for cash the Company (other than interest received with respect to any such non-cash considerationDisqualified Stock or subordinated Obligations) or Secured Indebtedness of a Subsidiary Guarantor or Indebtedness of a Subsidiary that is not a Guarantor (other than any Disqualified Stock or subordinated Obligations of a Guarantor), then such conversion in each case other than Indebtedness owed to the Company or disposition an Affiliate of the Company;
(2) to permanently reduce obligations under other Indebtedness of the Company (other than any Disqualified Stock or subordinated Obligations) or Indebtedness of a Subsidiary Guarantor (other than any Disqualified Stock or subordinated Obligations of a Guarantor), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; provided that the Company shall be deemed to constitute equally and ratably reduce Obligations under the Notes, as provided in Section 3.07, through open market purchases at or above 100% of the principal amount thereof or by making an Asset Sale hereunder and the Net Proceeds thereof shall be applied offer (in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, in Section 3.09. Upon receiving notice each case plus the amount of accrued but unpaid interest on the Notes that are purchased or redeemed; and/or
(a) to acquire all or substantially all of, or a majority of the Voting Stock of, another Permitted Business, (b) to make a capital expenditure or other expenditure for maintenance, repair or improvement of existing property or (c) to acquire long-term assets that are used for or useful in a Permitted Business or, in each case of (a), (b) and (c) of this clause (3), enter into a binding commitment for any such acquisition, investment or expenditure; provided that such binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment unless earlier completed, only until the 180th day following the expiration of the aforementioned 365-day period; provided further that, if the acquisition, investment or expenditure contemplated by such binding commitment is not consummated on or before the 180th day following the expiration of the aforementioned 365-day period, such commitment shall be deemed not to have been a permitted application of Net Proceeds. In addition to the foregoing, any investment, expenditure or capital expenditure of the type described in clauses (a), (b) and (c) of this clause (3), in each case made within 60 days prior to an Asset Sale, shall be deemed to satisfy this clause (3) with respect to the application of the Net Proceeds from such Asset Sale. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings or invest the Net Proceeds in any manner that is not otherwise prohibited under this Indenture. If any portion of the Net Proceeds from Asset Sales is not applied or invested as provided in clauses (1) and (2) of the paragraph above or the Company otherwise determines at any time not to apply such Net Proceeds as so provided, such amount will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $75.0 million (or such lesser amount as the Company determines), the Company shall (and at any time the Company may) make an Asset Sale Offer (such amount shall be the product of the Excess Proceeds and a fraction, (a) the numerator of which is the aggregate principal amount of the Notes outstanding on the date of the Asset Sale Offer and (b) the denominator of which is the sum of the aggregate principal amount of the Notes outstanding on the date of the Asset Sale Offer and the aggregate principal amount of other Pari Passu Indebtedness of the Company outstanding on the date of the Asset Sale Offer and subject to terms and conditions in respect of Asset Sales substantially similar to this Section 4.10 and requiring the Company to make an offer to purchase such Indebtedness at substantially the same time as the Asset Sale Offer). The Company shall purchase Notes tendered pursuant to the Asset Sale Offer at a purchase price of 100% of their principal amount (or, Holders in the event such other Pari Passu Indebtedness of the Company was issued with significant original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Pari Passu Indebtedness of the Company, such lesser price, if any, as may elect be provided for by the terms of such Pari Passu Indebtedness) in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture (the “Asset Sale Offer Price”). If the aggregate purchase price of the securities tendered exceeds the Net Proceeds allotted to tender their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes in whole or in part in minimum will be denominations of integral multiples of $1,000; provided that the unpurchased portion of the Notes of any Holder shall be equal to $2,000 in principal amount or integral multiples of $1,000 in excess thereof in exchange for cashthereof. To the extent that the aggregate principal amount If any Excess Proceeds remain after consummation of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amountan Asset Sale Offer, the Company may use such excess Net those Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not otherwise prohibited by this Indenture. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will shall comply with the requirements of Section 14(e) of and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Asset Sales. (a) The Company will OI Group shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company OI Group (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved ;
(2) such Fair Market Value is determined in good faith by OI Group and a certification to that effect is set forth in an Officers’ Certificate delivered to the Company’s Board of DirectorsTrustee; and
(23) at least 75% of the consideration therefor received in the Asset Sale by the Company OI Group or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the CompanyOI Group’s or such Restricted Subsidiary’s most recent balance sheet) of the Company OI Group or any Restricted Subsidiary of OI Group (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee of the Notes) that are assumed by the transferee of any such assetsassets which assumption releases OI Group or such Restricted Subsidiary from further liability;
(Bb) any securities, notes or other obligations received by the Company OI Group or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted by the Company OI Group or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);; and
(Cc) any Designated Noncash Consideration received by the Company OI Group or any Restricted Subsidiary of OI Group in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) provided, that the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind 75% limitation referred to in clauses clause (23) above shall not apply to any Asset Sale in which the cash portion of such consideration received therefor on an after-tax basis, determined in accordance with clause (3) above, is equal to or (4) of Section 4.10(b).
(b) greater than what the after-tax net proceeds would have been had such transaction complied with such 75% limitation. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company OI Group or such Restricted Subsidiary, Subsidiary may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay senior Indebtedness of the Company or any Guarantor and, prepayif the senior Indebtedness of the Company or any Guarantor repaid is revolving credit Indebtedness, redeem to correspondingly reduce commitments with respect thereto, if the terms of such revolving credit Indebtedness would require such a commitment reduction; provided, however, that a non-Guarantor Restricted Subsidiary may use the Net Proceeds from an Asset Sale to repay senior Indebtedness of OI Group or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)any Restricted Subsidiary of OI Group;
(2) to make payments required to be made with respect to the outstanding OI Inc. Senior Notes;
(3) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the Company;
(3) to make Voting Stock of, a capital expenditurePermitted Business;
(4) to acquire other assets (other than securities make a capital expenditure in or current assets) that will be is used or useful in a Related Permitted Business;
(5) to acquire other long-term assets in or that are used or useful in a Permitted Business; or
(56) to make an Investment in any one or more businesses (provided that such Investment in any business may be in the form of the acquisition of Capital Stock so long as it results in OI Group or a combination Restricted Subsidiary of prepayments and investments permitted by OI Group, as the foregoing clauses (1case may be, owning a majority of the Capital Stock of such business), (2)properties or assets that replace the businesses, (3) properties and (4)assets that are the subject of such Asset Sale; provided provided, however, that any such business, properties and assets of OI Group or a Guarantor that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) subject of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the an Asset Sale are invested in one or more businesses, properties or assets that generated the Net Proceeds, the Company has entered into and not abandoned constitute or rejected are owned or shall be owned by a binding agreement to consummate any reinvestment described in clause (2), (3) Guarantor or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) a Restricted Subsidiary that becomes a Guarantor. Pending the final application of any such Net Proceeds, OI Group or the Company or any applicable Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph shall constitute “Excess Proceeds.” When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $25.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of any Notes and all Holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales of sales of assets (including the “Pari Passu Indebtedness”), from Existing Senior Notes) to purchase the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonand Additional Interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoingdate of purchase, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 and shall be deemed to constitute payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale hereunder and Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use such Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Owens Illinois Group Inc), Indenture (Owens-Illinois Healthcare Packaging Inc.)
Asset Sales. (a) The Company will not, and will not permit Effect any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of except that the following shall be deemed to be cashpermitted:
(Aa) disposition of used, worn out, obsolete or surplus property by any liabilities (as shown on Company in the Company’s ordinary course of business and the abandonment or such Restricted Subsidiary’s most recent balance sheet) other disposition of Intellectual Property that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the Company or any Restricted Subsidiary business of the Companies taken as a whole
(other than contingent liabilities b) sales of inventory, cash and liabilities that are by their terms subordinated to Cash Equivalents and doubtful accounts, in each case, in the Notes or any Subsidiary Guarantee) that are assumed by the transferee ordinary course of any such assetsbusiness;
(Bc) any securities, notes or other obligations received by Asset Sales; provided that the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash aggregate consideration received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such respect of all Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received Sales pursuant to this clause (Cb) since shall not exceed $10.0 million in the Issue Date aggregate but, in any event, shall not exceed $3.0 million with respect to any single Asset Sale;
(d) leases of real or personal property in the ordinary course of business;
(e) the Transactions as contemplated by the Transaction Documents;
(f) mergers and consolidations in compliance with Section 6.05;
(g) Investments in compliance with Section 6.04;
(h) without duplication, Investments permitted as Capital Expenditures pursuant to Section 6.10(c);
(i) sales, transfers and other dispositions of property by any Subsidiary that is at not a Subsidiary Guarantor to another Subsidiary that is not a Subsidiary Guarantor;
(j) non-exclusive licenses and sublicenses of Intellectual Property in the time outstanding, not ordinary course of business;
(k) any disposition of real property to exceed a Governmental Authority that results from a Casualty Event;
(l) sales or forgiveness of accounts receivable in the greater ordinary course of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, business in connection with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuecollection or compromise thereof; and
(Dm) Refranchising Sales in the fair market value (measured as ordinary course of business. To the date such Equity Interests extent the Required Lenders or assets are received) of any Equity Interests or assets of all the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b)Lenders, as applicable, if and waive the provisions of this Section 6.06 with respect to the extent thatsale of any Collateral, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited Collateral is sold as permitted by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”)6.06, such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses Collateral (1), (2), (3), (4) or (5) of Section 4.10(b) (each unless sold to a “Net Proceeds Offer Amount”Company) shall be applied sold free and clear of the Liens created by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger DateSecurity Documents, from all Holders (and, if required by so long as Borrower shall have provided the terms of Agents such certifications or documents as any other Indebtedness of Agent shall reasonably request in order to demonstrate compliance with this Section 6.06, the Company ranking pari passu with the Notes Agents shall take all actions they deem appropriate in right of payment and which has similar provisions requiring the Company either order to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding effect the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Holding Corp.), Credit Agreement (Mattress Firm Holding Corp.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1) the Company (or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directors; andthe assets sold or otherwise disposed of;
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 25 million and (by) 3.53% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall each be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(3) if such Asset Sale involves the disposition of Collateral, the Company or such Restricted Subsidiary has complied with the provisions of this Indenture and the Security Documents; and
(D4) if such Asset Sale involves the fair market value (measured as disposition of Notes Priority Collateral or, after the Discharge of ABL Obligations, the disposition of ABL Priority Collateral, the Net Cash Proceeds thereof shall be paid directly by the purchaser of the date Collateral to the Collateral Agent for deposit into the Collateral Account, and, if any property other than cash or Cash Equivalents is included in such Equity Interests or assets are received) of any Equity Interests or assets of Net Cash Proceeds, such property shall be made subject to the kind referred to in clauses (2) or (4) of Section 4.10(b)Note Liens.
(b) Within 365 days after the Company or any Restricted Subsidiary of the Company’s receipt of any the Net Cash Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(1i) to repaythe extent such Net Cash Proceeds constitute proceeds from the sale of ABL Priority Collateral, prepay, redeem or repurchase to permanently repay Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)under the Credit Agreement secured by such ABL Priority Collateral;
(2ii) to acquire the extent such Net Cash Proceeds constitute proceeds from the sale of Notes Priority Collateral, to permanently repay, equally and ratably, the Securities and any Permitted Additional Pari Passu Obligations;
(iii) to permanently reduce Obligations under other Secured Indebtedness (provided that if the Company or any Guarantor shall so reduce such Obligations, the Company shall equally and ratably reduce Obligations under the Securities and any Permitted Additional Pari Passu Obligations if the Securities and Permitted Additional Pari Passu Obligations are then prepayable or, if the Securities may not then be prepaid, by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all or substantially all Holders to purchase at a purchase price equal to 100% of the assets principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of another Related BusinessSecurities that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;
(iv) to acquire an Investment in any Equity Interests one or more businesses (provided that if such investment is in the form of another Related Businessthe acquisition of Capital Stock of a Person, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;
(3) to make a ), or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; orand/or
(5v) to make an Investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a combination Person, such acquisition results in such Person becoming a Restricted Subsidiary of prepayments the Company), properties or assets that replace the properties and investments permitted by assets that are the foregoing subject of such Asset Sale; provided that if such Net Cash Proceeds are received in respect of Notes Priority Collateral, such assets constitute Notes Priority Collateral; provided that in the case of clauses (1), (2), (3iv) and (4); provided that v) above, a binding commitment shall be treated as a permitted application of the Company and its Restricted Subsidiaries will be deemed to have applied Net Cash Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceedsare so applied, the Company has entered or such Restricted Subsidiary enters into and not abandoned or rejected a another binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed commitment within 180 days after the end six months of such 365-day period.
(c) cancellation or termination of the prior binding commitment. Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Cash Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4the first sentence of this Section 4.06(b) or (5) of Section 4.10(b) (each, a shall be deemed to constitute “Net Proceeds Offer Trigger Date”), such Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $15 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders of Securities and (andx) in the case of Net Cash Proceeds from Notes Priority Collateral, if required by to the terms holders of any other Indebtedness of the Company ranking pari passu Permitted Additional Pari Passu Obligations containing provisions similar to those set forth in this Indenture with the Notes in right of payment and which has similar provisions requiring the Company either respect to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales or (y) in the “case of any other Net Cash Proceeds, to all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to Assets Sales, to purchase the maximum principal amount of such Securities and Permitted Additional Pari Passu Obligations or Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case appropriate, that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes thereof (or in the event such other Indebtedness was issued with significant original issue discount, 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtednessvalue thereof), plus accrued and unpaid interest thereoninterest, if any (or such lesser price, if any, as may be provided by the terms of such other Indebtedness), to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoingclosing of such offer, if at any time any non-cash consideration received by in accordance with the Company or any Restricted Subsidiaryprocedures set forth in this Section 4.06 and, as in the case may beof Securities, in connection with any is an integral multiple of $2,000. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceed $15 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) Securities and such other Indebtedness tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes purposes. If the aggregate principal amount of Securities and Permitted Additional Pari Passu Obligations or for any Pari Passu Indebtedness, as appropriate, surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities and such other purpose not prohibited by this IndentureIndebtedness to be purchased in the manner described in Section 4.06(e). Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Cash Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as a Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than two Business Days prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not listed by lot or such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that the Trustee shall not select Securities for purchase which would result in a Holder with a principal amount of Securities less than the minimum denomination to the extent practicable.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Security. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 2 contracts
Samples: Indenture (Remington Arms Co Inc/), Indenture (Freedom Group, Inc.)
Asset Sales. (a) The Company will Corporation shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale on or after the date of this Indenture unless:
(1) the Company Corporation (or the its Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Corporation (or such its Restricted Subsidiary Subsidiary, as the case may be) is in the form of cash or Cash Equivalents. For purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall be deemed to be cash:
(Aa) any liabilities (liabilities, as shown on the Company’s or such Restricted SubsidiaryCorporation’s most recent consolidated balance sheet) , of the Company Corporation or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Debentures or any Subsidiary Debenture Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary assumption or similar agreement and without recourse to the Corporation or any of its Restricted Subsidiaries;
(Bb) any securities, notes Senior Secured Notes, Debentures or other obligations received by the Company Corporation or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Corporation or such Restricted Subsidiary into cash (or Cash Equivalents within 30 days of receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(Cc) any Designated Noncash Non-Cash Consideration received by the Company Corporation or any Restricted Subsidiary thereof in such Asset Sale having an aggregate fair market valuea Fair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration20 million, with the fair market value Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2d) to acquire all or substantially all of the any assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3e) to make a capital expenditure;
(4) to acquire other any assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; orand
(5f) a combination cash held in escrow as security for any indemnification, settlement or adjustment of prepayments and investments permitted by purchase price, earn-outs or similar obligations in connection with the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within Asset Sale. Within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate receipt of any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after from an Asset Sale or such earlier date, if any, as the Board of Directors a Casualty or Condemnation Event directly attributable to any assets or properties of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company Corporation or any of its Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicableSubsidiaries, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders Corporation (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds (excluding any Net Proceeds used to repay Senior Secured Notes in accordance with the terms of the Senior Secured Note Indenture) at its option:
(1) to prepay, will repay, purchase or legally defease Applicable Indebtedness to the extent required to do so by the terms of any such Applicable Indebtedness;
(2) to redeem Debentures in accordance with Section 4.1;
(3) to acquire Debentures in accordance with Section 4.6;
(4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Corporation;
(5) to make a capital expenditure with respect to a Permitted Business;
(6) to purchase assets that would constitute collateral securing the Senior Secured Notes or Senior Secured Note Guarantees, as applicable, or that would be subject to other Permitted Liens, or, in the case of a Casualty or Condemnation Event, to repair, restore, rebuild or replace property subject to such Casualty or Condemnation Event; or
(7) to acquire other assets that are used or useful in a Permitted Business. Notwithstanding the foregoing, in the event the Corporation or any Restricted Subsidiary enters into a binding agreement committing to make an acquisition, expenditure or investment in compliance with clauses (4) to (7) of the preceding paragraph within 365 days after the receipt of any Net Proceeds from an Asset Sale, such commitment shall be treated as a permitted application of the Net Proceeds from the date of the execution of such agreement until the earlier of (i) the date on which such acquisition or investment is consummated or such expenditure is made or such agreement is terminated, and (ii) the 180th day after the expiration of the aforementioned 365-day period. Any Net Proceeds from Asset Sales or Casualty or Condemnation Events that are not applied or invested as provided in the second paragraph of this Section 8.8 shall constitute “Excess Proceeds”. Once the aggregate amount of Excess Proceeds exceeds $35 million, the Issuer shall, within 30 days thereof, make an offer (an “Asset Sale Offer”) to all the Holders of Debentures to repurchase, without premium or penalty, the maximum principal amount of Debentures that may be repurchased with such Excess Proceeds. The offer price for any Asset Sale Offer shall be equal to 100% of the aggregate principal amount of Debentures, plus accrued and unpaid interest, if any, to the date of repurchase (subject to the right of Holders on the relevant record date to receive interest due on the relevant Interest Payment Date) and shall be payable in cash (the “Asset Sale Offer Payment”). The Issuer shall send a notice to each Holder of Debentures with a copy to the Debenture Trustees describing the Asset Sale Offer and offering to repurchase Debentures on a given date specified in the notice (the “Asset Sale Offer Payment Date”), which date shall be no earlier than 30 days and no later than 60 days from the date such notice is sent, pursuant to the procedures required by this Indenture and described in such notice. In the event that any Excess Proceeds remain after the completion of an Asset Sale Offer, the Corporation or the applicable Restricted Subsidiary may use such remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. In the event that the aggregate amount to be paid in respect of all the Debentures or portion of Debentures properly tendered pursuant to any Asset Sale Offer exceeds the Excess Proceeds, selection of the Debentures for repurchase shall be made by the Debenture Trustees on a pro rata basis (or, in the case of Debentures represented by a Global Certificate, as set forth in Section 2.5, based on a method that most nearly approximates a pro rata selection as the Debenture Trustees deem fair and appropriate) unless otherwise required by law or applicable stock exchange or depositary requirements. No Debentures of a principal amount of $1.00 or less shall be repurchased in part. Upon completion of each Asset Sale Offer, the amount of Net Proceeds shall be reset at zero. The Issuer 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 those laws and regulations are applicable in connection with the repurchase of Notes pursuant to the Debentures as a Net Proceeds result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale Offer provisions of this Section 4.10 Indenture by virtue of such compliance. On the Asset Sale Offer Payment Date, the Issuer shall, to the extent lawful:
(a) accept for payment all Debentures or portions of Debentures properly tendered pursuant to the Asset Sale Offer;
(b) deposit with the paying agent an amount equal to the Asset Sale Offer Payment in respect of all Debentures or portions of Debentures properly tendered; and
(c) deliver or cause to be delivered to the Debenture Trustees the Debentures properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Debentures or portions of Debentures being purchased by the Issuer. The Paying Agent shall promptly mail to each Holder of Debentures properly tendered the Asset Sale Offer Payment for such Debentures as directed by the Issuer in writing, any Debenture Trustee shall promptly authenticate upon an authentication order from the Issuer and mail (or cause to be transferred by book entry) to each Holder a Debenture equal in principal amount to any unpurchased portion of the Debentures surrendered, if any, provided that each Debenture shall be in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof. The provisions described above that require the Issuer to make an Asset Sale Offer shall be applicable whether or not any other provisions of this Indenture are applicable. Pending the final application of any Net Proceeds, the Corporation or the applicable Restricted Subsidiary, as the case may be, may temporarily reduce Indebtedness under Credit Facilities or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. If 90% or more of the aggregate principal amount of the Debentures outstanding on the date of the giving of notice of an Asset Sale Offer have been tendered to the Issuer pursuant to the Asset Sale Offer, the Issuer shall have the right to redeem all the remaining Debentures at the same price as under the Asset Sale Offer. Notice of such redemption must be given by the Issuer to the Debenture Trustees within 10 days following the expiry of the Asset Sale Offer, and promptly thereafter, by the Debenture Trustees to the Holders of the Debentures not tendered pursuant to the Asset Sale Offer.
Appears in 2 contracts
Samples: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale Sale, unless:
(1) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directorsthe assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:amount of
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assetsassets (or a third party on behalf of the transferee) and for which the Company or such Restricted Subsidiary has been validly released by all applicable creditors in writing;
(B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 90 days following the closing of such Asset Sale; and
(C) any Designated Noncash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstandinghas not previously been converted to cash, not to exceed the greater of (ax) $300.0 35.0 million and (by) 3.53.0% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 days after any of the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted SubsidiarySubsidiary may, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.permanently reduce
Appears in 2 contracts
Samples: Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
(1) except with respect to an Asset Sale made pursuant to an Existing Purchase Option, the Company (or the Restricted Subsidiaryany of its Subsidiaries, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and;
(2) at least 7590% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(Aa) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary of its Subsidiaries (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 assetsassets pursuant to a customary novation or similar agreement that releases the Company or such Subsidiary from further liability;
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are promptly, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);; and
(Cc) in connection with the exercise by a purchaser of an Existing Purchase Option, any Designated Noncash Consideration received amount owed by the Company or any Restricted the applicable Subsidiary in to the purchaser under the agreement containing such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date Existing Purchase Option that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted set off by the foregoing clauses (1), (2), (3) and (4); provided that purchaser against the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.price;
Appears in 2 contracts
Samples: Third Priority Secured Notes Indenture (Calpine Corp), Third Priority Secured Notes Indenture (Delta Energy Center, LLC)
Asset Sales. (a) The Company will notCause, and will not permit any of its Restricted Subsidiaries to, consummate make or suffer to exist an Asset Sale Sale, unless:
(1a) the Company (Borrower or the 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 (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleBorrower) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and;
(2b) at least 75% of the consideration therefor received in the Asset Sale by the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company Borrower or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Obligations or any Subsidiary Guarantee) that are owed to the Borrower or a Restricted Subsidiary, that are assumed by the transferee of any such assets;assets and for which the Borrower and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(Bii) any securities, notes or other obligations securities received by the Company Borrower or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Borrower or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the closing of such Asset Sale, and
(Ciii) any Designated Noncash Non-Cash Consideration received by the Company Borrower or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-Cash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess cash for purposes of $200.0 million).this provision and for no other purpose; and
(fc) Each Net Proceeds Offer will be sent no Default or Event of Default shall exist or would exist after giving pro forma effect 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cashsuch Asset Sale. To the extent any Collateral is disposed of as expressly permitted by this Section 6.05 or pursuant to any disposition that does not constitute an Asset Sale but is otherwise permitted under this Agreement, in each case, to any Person other than a Loan Party, such Collateral shall be sold free and clear of the aggregate principal amount of Notes (plusLiens created by the Loan Documents, if and the Administrative Agent or the Collateral Agent, as applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable lawauthorized to take any actions deemed appropriate in order to effect the foregoing.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Blackboard Inc), First Lien Credit Agreement (Blackboard Inc)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, cause or make an Asset Sale, unless (x) the Issuer or any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted SubsidiarySubsidiaries, 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 (measured if the consideration for such Asset Sale is less than or equal to $25.0 million, as determined in good faith by the Issuer or if the consideration for such Asset Sale exceeds $25.0 million, as determined by an Independent Financial Advisor) of the assets sold or otherwise disposed of, (y) at least 75% of the aggregate consideration received in such Asset Sale, together with all other Asset Sales consummated by the Issuer or such Restricted Subsidiary, as the case may be, since the Issue Date (on a cumulative basis), is in the form of Cash Equivalents and (z) any grant or transfer of net profits interests or Volumetric Production Payments that constitutes an Asset Sale does not exceed the greater of (i) $250.0 million and (ii) 17.0% of the net present value, discounted at 10% per annum, of the future net revenues expected to accrue to the Issuer’s and the Subsidiary Guarantors’ Proved Developed Producing Reserves, calculated in accordance with Strip Prices (determined as of the date of the definitive agreement with respect to such Asset Sale) of ); provided that the assets or Equity Interests issued or sold or otherwise disposed amount of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Ai) any liabilities (as shown on the CompanyIssuer’s or such a Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company Issuer 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;assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);,
(Ciii) with respect to any Asset Sale of Oil and Gas Properties by the Issuer or any Restricted Subsidiary, the costs and expenses related to the exploration, development, completion or production of such Oil and Gas Properties and activities related thereto agreed to be assumed by the transferee (or an Affiliate thereof),
(iv) [reserved],
(v) [reserved], and
(vi) any Designated Noncash Non-cash Consideration received by the Company Issuer or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by the Issuer), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cvi) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55% of the Issuer’s Adjusted Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) ), shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b)4.06.
(b) Within 365 days after of the Issuer’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale, the Company Issuer or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repayrepay (v) Indebtedness constituting First-Priority Lien Obligations (and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem to correspondingly reduce commitments with respect thereto), (w) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor (provided that the assets disposed of in such Asset Sale were not assets of the Issuer or repurchase a Subsidiary Guarantor), (x) Obligations under the Notes, (y) other Pari Passu Indebtedness so long as the Net Proceeds from such Asset Sale are with respect to (A) assets that secure such other Pari Passu Indebtedness on a senior basis to the Notes Obligations or (B) assets not constituting Collateral or (z) Other Second-Lien Obligations (provided that if the Issuer or any Subsidiary Guarantor shall so reduce Other Second-Lien Obligations under this clause (z) (which for the avoidance of doubt will not constitute Indebtedness under clauses (v), (w), (x) or (y)), the Issuer will equally and ratably reduce Obligations under the Notes pursuant to Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof (or, in the event that the Notes were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any, the pro rata principal amount of Notes, in each case other than Subordinated Indebtedness) and other Obligations (other than Subordinated IndebtednessIndebtedness owed to the Issuer or an Affiliate of the Issuer);
(2ii) to acquire all make an Investment in any one or substantially all more businesses (provided that if such Investment is in the form of the assets acquisition of another Related BusinessCapital Stock of a Person, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;
Issuer), assets, or property or capital expenditures, in each case (3x) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related BusinessSimilar Business or (y) that replace the properties and assets that are the subject of such Asset Sale; provided that if the assets that were disposed of in the Asset Sale constituted Collateral, the assets acquired must also be Collateral; or
(5iii) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)to invest in Additional Assets; provided that if the Company and assets that were disposed of in the Asset Sale constituted Collateral, the Additional Assets must also be Collateral; provided, that the requirement in clause (ii) or (iii) of this paragraph shall be deemed to be satisfied if a bona fide binding commitment to make the Investment or expenditure referred to therein is entered into by the Issuer or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Issuer within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such commitment within 180 days following the date such commitment is entered into.
(c) Any Net Proceeds from any Asset Sale that are not applied as provided and within the time period set forth in Section 4.06(b) (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes, as described in Section 4.06(b)(i), shall be deemed to have been invested whether or not such offer is accepted) will be deemed to have applied constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Issuer shall make an offer to all holders of Notes (and, at the option of the Issuer, to holders of any Other Second-Lien Obligations) (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (and such Net Other Second-Lien Obligations), that is at least $2,000 and an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof (or, in the event the Notes or such Other Second-Lien Obligations were issued with significant original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or, in respect of such Other Second-Lien Obligations, such lesser price, if any, as may be provided for by the terms of such Other Second-Lien Obligations), to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Section 4.06. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that Excess Proceeds exceeds $20.0 million by delivering the notice required pursuant to clause (2the terms of Sections 3.05 and 4.06(f), (3) or (4) of this Section 4.10(b), as applicable, if and with a copy to the Trustee. To the extent that, within 365 days after that the aggregate amount of Notes (and such Other Second-Lien Obligations) tendered pursuant to an Asset Sale that generated Offer is less than the Net Excess Proceeds, the Company has entered into Issuer may use any remaining Excess Proceeds for any purpose that is not prohibited by this Indenture. If the aggregate principal amount of Notes (and not abandoned or rejected a binding agreement such Other Second-Lien Obligations) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Issuer, upon determination by the Issuer of the aggregate principal amount to consummate any reinvestment be selected, shall select the Notes to be purchased in the manner described in clause (2Section 4.06(g). Upon completion of any such Asset Sale Offer, (3) or (4) the amount of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day periodExcess Proceeds shall be reset at zero.
(cd) Pending the final application of any such Net ProceedsProceeds pursuant to this Section 4.06, the Company Issuer or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(f) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Issuer shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On the Asset Sale Offer purchase date, the Issuer shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Issuer or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Asset Sale Offer purchase price to be paid in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Issuer shall deliver to the Trustee for cancellation the Notes or portions thereof that have been properly tendered to and are to be accepted by virtue the Issuer. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Issuer to the Trustee are greater than the purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuer immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 4.06.
(g) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note which was delivered by the holder for purchase and a statement that such holder is withdrawing his election to have such Note purchased. If at the end of the Asset Sale Offer Period more Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Issuer is required to purchase, selection of such complianceNotes for purchase shall be made by the Issuer in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed (and the Issuer shall notify the Trustee of any such listing), or if such Notes are not so listed, on a pro rata basis, to the extent practicable, by lot or by such other method as the Issuer shall deem fair and appropriate (and in such manner as complies with the requirements of the Depository, if applicable); provided that no Notes of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(h) Notices of an Asset Sale Offer shall be mailed by the Issuer by first class mail, postage prepaid, or otherwise delivered in accordance with the applicable procedures of the Depository, at least 30 but not more than 60 days before the purchase date to each holder of Notes at such holder’s registered address (with a copy to the Trustee). If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (Talos Energy Inc.), Indenture (Talos Energy Inc.)
Asset Sales. (a) The Company will Corporation shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale on or after the date of this Indenture unless:
(1) the Company Corporation (or the its Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Corporation (or such its Restricted Subsidiary Subsidiary, as the case may be) is in the form of cash or Cash Equivalents. For purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall be deemed to be cash:
(Aa) any liabilities (liabilities, as shown on the Company’s or such Restricted SubsidiaryCorporation’s most recent consolidated balance sheet) , of the Company Corporation or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary assumption or similar agreement and without recourse to the Corporation or any of its Restricted Subsidiaries;
(Bb) any securities, notes Notes or other obligations received by the Company Corporation or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Corporation or such Restricted Subsidiary into cash (or Cash Equivalents within 30 days of receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(Cc) any Designated Noncash Non-Cash Consideration received by the Company Corporation or any Restricted Subsidiary thereof in such Asset Sale having an aggregate fair market valuea Fair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration20 million, with the fair market value Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2d) to acquire all or substantially all of the any assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3e) to make a capital expenditure;
(4) to acquire other any assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; orand
(5f) a combination cash held in escrow as security for any indemnification, settlement or adjustment of prepayments and investments permitted purchase price, earn-outs or similar obligations in connection with the Asset Sale. As provided in Section 10.12, any Net Proceeds received by the foregoing clauses Corporation (1), (2), (3) and (4); provided that the Company and or any of its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted valueSubsidiaries, as the case may be) from an Asset Sale, or Casualty or Condemnation Event directly attributable to any assets or properties of the Corporation or any of its Restricted Subsidiaries, other than Excluded Property, shall automatically become Collateral securing the obligations of the Issuer and the Guarantors with respect to the Notes and any such Pari Passu Indebtednessthe Notes Guarantees. For purposes of this Indenture, (i) an the portion up to and not exceeding $35 million of the aggregate principal amount of Notes Net Proceeds received by the Corporation (plus, if applicable, an aggregate principal amount or accreted valueany of its Restricted Subsidiaries, as the case may be) from Asset Sales or Casualty or Condemnation Events since the date of this Indenture shall constitute “Available Proceeds”, and (ii) the portion exceeding $35 million of Pari Passu Indebtedness) equal to the aggregate amount of Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of received by the principal amount of the Notes Corporation (or 100% any of the principal amount or accreted valueits Restricted Subsidiaries, as the case may be, ) from Asset Sales or Casualty or Condemnation Events since the date of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
this Indenture shall constitute “Excess Proceeds”. The Corporation (d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any of its Restricted SubsidiarySubsidiaries, as the case may be) shall be permitted to use or invest any Available Proceeds as it deems appropriate, in connection with any Asset Sale its sole discretion, provided that such use or investment is converted into or sold or not otherwise disposed prohibited by the terms and conditions of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition this Indenture. Any Excess Proceeds shall be deemed automatically designated as “Designated Net Proceeds” and applied to constitute an Asset Sale hereunder and redeem Notes as provided in Section 4.3 on the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer first Mandatory Redemption Payment Date to occur immediately after the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess receipt of $200.0 million resulting from one or more Asset Sales (at which time such Excess Proceeds. During the entire unutilized Net Proceeds Offer Amount, and not just period commencing on the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that is 30 days after the Net receipt of any Excess Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown and ending on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy first Mandatory Redemption Payment Date to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicableoccur immediately thereafter, the aggregate principal amount Corporation (or accreted valueany of its Restricted Subsidiaries, as the case may be) shall deposit any such Excess Proceeds in a segregated account or accounts (each, of Pari Passu Indebtednessan “Excess Proceeds Account”) validly tendered held by the Holders thereof and not withdrawn exceeds Collateral Agent pursuant to arrangements reasonably satisfactory to the Net Proceeds Offer AmountCollateral Agent, Notes provided, however, that the Corporation (or any of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted valueits Restricted Subsidiaries, as the case may be), of shall not be required to cause any such Pari Passu Indebtedness tendered and not withdrawn). To Excess Proceeds to be held in the Excess Proceeds Account except to the extent that the aggregate amount of such Excess Proceeds that are not held in the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Excess Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable lawAccount would exceed $10 million.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Asset Sales. (a) The Company will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate (i) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction) other than sales of inventory in the ordinary course of business (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Partnership shall be governed by the provisions of this Indenture set forth under Section 10.15 hereof or Article VIII hereof and not by the provisions of this Section 10.14) or (ii) issue or sell Capital Stock of any of its Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions (each of the foregoing, an “Asset Sale unless:
Sale”), unless (1x) the Company Partnership (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board General Partner) of Directors; and
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company Partnership or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes cash; provided, however, that the amount of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the CompanyPartnership’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company Partnership 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;
; (B) any securities, notes or other obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted of such Asset Sale by the Company Partnership or such Restricted Subsidiary into cash (to the extent of the cash received in that conversionreceived);
, and (C) any Designated Noncash Non-Cash Consideration received by the Company Partnership or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) since the Issue Date that is at the such time outstanding, not to exceed an amount equal to the greater of (ax) $300.0 100.0 million and (by) 3.55.0% of Consolidated Total Net Tangible Assets of the Partnership at the time of the receipt of such Designated Noncash Non-Cash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in valuevalue shall be deemed to be cash for purposes of this provision; and
and provided, further, that the 75% limitation referred to in this clause (Dy) shall not apply to any Asset Sale in which the cash 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. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any single transaction or series of related transactions that involves assets having fair market value of less than $25.0 million, (2) any transfer of assets or Capital Stock by the Partnership or any of its Restricted Subsidiaries to a Wholly Owned Restricted Subsidiary of the Partnership, (3) any transfer of assets or Capital Stock by the Partnership or any of its Restricted Subsidiaries to any Person in exchange for other assets having a fair market value (measured as determined in good faith by the General Partner) not less than that of the assets so transferred, (4) any transfer of assets pursuant to a Permitted Investment and (5) any transfer of accounts receivable under any Accounts Receivable Securitization. In the event that the Partnership or any of its Restricted Subsidiaries receives Net Proceeds from one or more Assets Sales in any fiscal year, then within 360 days after such date the Partnership shall apply the amount of such Equity Interests or assets are receivedaggregate Net Proceeds to (a) reduce Indebtedness of any Equity Interests or assets a Restricted Subsidiary (with a permanent reduction of availability in the kind referred to in clauses (2case of revolving Indebtedness) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt make an investment in assets; provided that, with respect to any portion of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant relating to clause (2b), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 360-day period provided above shall be extended by an additional 180 days if by not later than the 360th day after the end of such 365-day period.
(c) Pending the final application receipt of such Net Proceeds, the Company Issuers or a Restricted Subsidiary, as applicable, have entered into a binding commitment with a Person other than an Affiliate of the Issuers to make an investment of the type referred to in such clause in the amount of such Net Proceeds. Any Net Proceeds that are not applied or invested in either of these ways will be considered “Excess Proceeds.” Pending the final application of any such Net Proceeds, the Partnership or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, Agreement or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on When the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $50 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) the Issuers shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase all Holders of the Securities of applicable series (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from and to all Holders (and, if required by the terms holders of any other Indebtedness pari passu debt securities of the Company ranking pari passu Partnership or the Issuers containing provisions similar to those set forth in this Indenture with the Notes in right of payment and which has similar provisions requiring the Company either respect to make an offer offers to repurchase or to otherwise repurchase, redeem or repay such Indebtedness purchase with the proceeds from Asset Sales (of sales of assets, to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusthe Securities and such other pari passu debt securities that may be purchased out of the Excess Proceeds, if applicable, at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), thereof plus accrued and unpaid interest thereoninterest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may bedate of purchase, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)this Indenture. To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) Securities and other pari passu debt securities tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company Partnership or any Restricted Subsidiary may use such excess Net Proceeds Offer Amount deficiency for general corporate purposes business purposes. If the aggregate principal amount of the Securities and other pari passu debt securities surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities or other pari passu debt securities to be purchased on a pro rata basis. Notwithstanding the foregoing, if the Issuers are required to commence an Asset Sale Offer at any time when the Issuers have securities outstanding ranking pari passu in right of payment with the Securities of the applicable series and the terms of those securities provide that a similar offer must be made with respect to those other securities, then the Asset Sale Offer for any the Securities will be made concurrently with the other purpose not prohibited by this Indentureoffers and securities of each issue will be accepted on a pro rata basis in proportion to the aggregate principal amount of securities of each issue which their holders elect to have purchased. Upon completion of any such Net Proceeds the Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A In the event the Issuers are required to make an Asset Sale Offer pursuant to Section 11.08 and this Section 10.14, and the amount of the Net Proceeds Offer from the Asset Sale is not evenly divisible by $1,000, the Trustee shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder promptly refund to the extent such laws and regulations are applicable in connection with Issuers 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 provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue portion of such complianceExcess Proceeds that is not necessary to purchase the immediately lesser principal amount of the Securities that is so divisible.
Appears in 2 contracts
Samples: Indenture (Amerigas Partners Lp), Indenture (Amerigas Finance Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
unless (1i) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Saleevidenced by a Board Resolution) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes ; provided that the amount of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets;
assets or Equity Interests such that the Company or such Restricted Subsidiary are released from further liability, (Bb) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days and (to the extent of the cash received in that conversion);
(Cc) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 25.0 million and (b) 3.52% of Consolidated the Company’s Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash or Cash Equivalents for purposes of this Section 4.16, subject to application as provided in the following paragraph. Notwithstanding clause (ii) above, all or a portion of the consideration for any such Asset Sale may consist of all or substantially all of the assets of a Similar Business or Capital Stock of a person primarily engaged in a Similar Business; and
provided that, after giving effect to any such Asset Sale and related acquisition of assets, (Dx) no Default or Event of Default shall have occurred or be continuing; and (y) the fair market value (measured as of the date such Equity Interests or assets are received) Net Proceeds of any Equity Interests or assets of the kind referred to such Asset Sale, if any, are applied in clauses (2) or (4) of accordance with this Section 4.10(b).
(b) 4.16. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company, at its option, may (i) apply such Net Proceeds to permanently prepay, repay or reduce any Indebtedness under Credit Facilities (or other Indebtedness of the Company or such Restricted Subsidiary, at its optionas applicable, may secured by a Lien) (and to correspondingly permanently reduce commitments with respect thereto in the case of revolving borrowings) or (ii) apply an amount equal such Net Proceeds to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all purchase of the assets Capital Stock of another Related Business, a Similar Business or to acquire any Equity Interests the making of another Related Business, if, after giving effect to any such a capital expenditure in or the acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other long-term assets (other than securities or current assets) that will be are used or useful in each case, in a Related Business; or
Similar Business (5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered enter into and not abandoned or rejected a binding agreement to consummate any reinvestment described purchase Capital Stock or assets of such business or make such capital expenditure; provided that if such binding agreement ceases to be in clause (2)full force and effect during such 365-day period, (3) or (4) of this paragraph, and the Company may enter into another such reinvestment binding agreement; provided further that if the Investment pursuant to such new binding agreement is thereafter not completed within 180 days after the end first anniversary of the Asset Sale, any portion of the Net Proceeds of such 365-day period.
(c) Asset Sale not applied or invested pursuant to such binding agreement shall constitute Excess Proceeds). Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph will be deemed to constitute “Excess Proceeds.” When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $25 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders of Notes (and, if and holders of other Indebtedness of the Company to the extent required by the terms of any such other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion an “Asset Sale Offer”) to purchase the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu and such other Indebtedness) equal to that does not exceed the Net Excess Proceeds Offer Amount. The at an offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued and unpaid interest thereoninterest, if any, thereon to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may bedate of purchase, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash3.10 hereof. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu other Indebtedness) tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any purposes. If the aggregate principal amount of Notes (and such other purpose not prohibited by this IndentureIndebtedness) tendered exceeds the amount of Excess Proceeds, the Notes (and such other Indebtedness) to be purchased shall be selected on a pro rata basis. Upon completion of any such Net Proceeds an Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net The Company must make an offer to repurchase the Notes within 30 days following the date on which the aggregate amount of Excess Proceeds Offer shall exceeds $25 million and such offer must remain open for a period of 20 Business Days or such longer period as may be at least 30 and not more than 60 days (unless otherwise required by applicable law.
(g) ). The Company or the applicable Restricted Subsidiary, as the case may be, will shall comply with the requirements of Rule 14e-1 14e-l 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Playa Hotels & Resorts N.V.), Indenture (Playa Hotels & Resorts B.V.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate Consummate an Asset Sale unless:
unless (1) the Company (Borrower or the respective Restricted Subsidiary, as the case may be) , receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2) except with respect to any sale of the performance products business of Nutrinova, at least 75% of the consideration received in the Asset Sale by the Company Borrower or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashThe amount of:
(Ai) any liabilities (as shown on the Company’s Borrower's or such Restricted Subsidiary’s 's most recent balance sheetsheet or in the notes thereto) of the Company Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets;assets and for which the Borrower and all Restricted Subsidiaries have been validly released by all creditors in writing,
(Bii) any securities, notes or other obligations securities received by the Company Borrower or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Borrower or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the receipt thereof and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Borrower), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 75.0 million and (by) 3.51.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be cash solely for the earliest date that the Net Proceeds Offer Amount is equal to or in excess purposes of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance6.04.
Appears in 2 contracts
Samples: Loan Agreement (BCP Crystal Holdings Ltd. 2), Loan Agreement (Celanese CORP)
Asset Sales. (a) The Company will OI Group shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company OI Group (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved ;
(2) such Fair Market Value is determined in good faith by OI Group and a certification to that effect is set forth in an Officers' Certificate delivered to the Company’s Board of DirectorsTrustee; and
(23) at least 75% of the consideration therefor received in the Asset Sale by the Company OI Group or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the Company’s OI Group's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company OI Group or any Restricted Subsidiary of OI Group (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeGuarantee of the Notes) that are assumed by the transferee of any such assetsassets which assumption releases OI Group or such Restricted Subsidiary from further liability;
(Bb) any securities, notes or other obligations received by the Company OI Group or any such Restricted Subsidiary from such transferee that are converted within 180 days are converted by the Company OI Group or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);; and
(Cc) any Designated Noncash Consideration received by the Company OI Group or any Restricted Subsidiary of OI Group in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) PROVIDED, that the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind 75% limitation referred to in clauses clause (23) above shall not apply to any Asset Sale in which the cash portion of such consideration received therefore on an after-tax basis, determined in accordance with clause (3) above, is equal to or (4) of Section 4.10(b).
(b) greater than what the after-tax net proceeds would have been had such transaction complied with such 75% limitation. Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company OI Group or such Restricted Subsidiary, Subsidiary may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay senior Indebtedness of the Company or any Guarantor and, prepayif the senior Indebtedness of the Company or any Guarantor repaid is revolving credit Indebtedness, redeem to correspondingly reduce commitments with respect thereto, if the terms of such revolving credit Indebtedness would require such a commitment reduction; PROVIDED, HOWEVER, that a non-Guarantor Restricted Subsidiary may use the Net Proceeds from an Asset Sale to repay senior Indebtedness of OI Group or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)any Restricted Subsidiary of OI Group;
(2) to make payments required to be made with respect to the outstanding OI Inc. Senior Notes;
(3) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the Company;
(3) to make Voting Stock of, a capital expenditurePermitted Business;
(4) to acquire other assets (other than securities make a capital expenditure in or current assets) that will be is used or useful in a Related Permitted Business;
(5) to acquire other long-term assets in or that are used or useful in a Permitted Business; or
(56) to make an Investment in any one or more businesses (PROVIDED that such Investment in any business may be in the form of the acquisition of Capital Stock so long as it results in OI Group or a combination Restricted Subsidiary of prepayments and investments permitted by OI Group, as the foregoing clauses (1case may be, owning a majority of the Capital Stock of such business), (2)properties or assets that replace the businesses, (3) properties and (4)assets that are the subject of such Asset Sale; provided PROVIDED, HOWEVER, that any such business, properties and assets of OI Group or a Guarantor that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) subject of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the an Asset Sale are invested in one or more businesses, properties or assets that generated constitute or are owned or shall be owned by a Guarantor or a Restricted Subsidiary that becomes a Guarantor. Notwithstanding the Net Proceedsforegoing, the Company has entered into and not abandoned or rejected a binding agreement with respect to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, Asset Sale by the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facilityGuarantor, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended may only be applied pursuant to items (1) or (6) above and, to the provisions in extent such Net Proceeds are applied to, or with respect to, the preceding paragraph) after an Asset Sale Company, a Guarantor or such earlier date, if any, as the Board of Directors of the Company a Person or of such a Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1)that becomes a Guarantor, (2), items (3), (4) or (5) above. Pending the final application of Section 4.10(b) (eachany such Net Proceeds, a “OI Group or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds Offer Trigger Date”), such 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 shall constitute "EXCESS PROCEEDS." When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $25.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer (an "ASSET SALE OFFER") to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all Holders of other Indebtedness of the Company ranking pari passu that is PARI PASSU with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other PARI PASSU Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonand Liquidated Damages, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoingdate of purchase, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 and shall be deemed to constitute payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale hereunder and Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use such Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other PARI PASSU Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other PARI PASSU Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Oi Aid STS Inc), First Supplemental Indenture (NHW Auburn LLC)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1) the Company (or the any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration (including by way of relief or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the fair market value Fair Market Value (measured as of determined on the date of the definitive agreement with respect to such Asset Salecontractual obligation is entered into) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assets;
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);; and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 1,000 million and (by) 3.54.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall each be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of any the Net Cash Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary of the Company may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(1i) to repayrepay Obligations under the Credit Facilities that are secured by a Lien (and in the case of revolving obligations, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtednessto correspondingly permanently reduce commitments with respect thereto);
(2ii) to acquire all repay either (A) Obligations under the Securities or substantially all (B) Obligations under any other Pari Passu Indebtedness (and in the case of the assets of another Related Businessrevolving obligations, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4correspondingly permanently reduce commitments with respect thereto); provided that in the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds case of any repayment pursuant to clause (2B), the Company or such Restricted Subsidiary will reduce Obligations under the Securities on an equal or ratable basis with the Pari Passu Indebtedness repaid pursuant to clause (B) (1) on a pro rata basis as provided under Article 3 hereof, (2) through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (3) or by making an offer (4in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Securities at 100% of this Section 4.10(b)the principal amount thereof, as applicableplus the amount of accrued but unpaid interest, if and any, on the amount of Securities that would otherwise be prepaid (which offer shall be deemed to the extent that, within 365 days after the be an Asset Sale Offer for purposes hereof); and/or
(iii) to acquire Additional Assets; provided that generated in the case of clause (iii) above, a binding commitment (whether or not subject to conditions) shall be treated as a permitted application of the Net ProceedsCash Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company has entered or such Restricted Subsidiary enters into and another binding commitment (whether or not abandoned or rejected a binding agreement subject to consummate any reinvestment described in clause (2), (3conditions) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end six months of such 365-day period.
(c) cancellation or termination of the prior binding commitment. Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest use such Net Cash Proceeds in for any manner purpose not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Any Net Cash Proceeds from any Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4the first sentence of this Section 4.06(b) or (5) of Section 4.10(b) (each, a shall be deemed to constitute “Net Proceeds Offer Trigger Date”), such Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on exceeds (i) $150.0 million, in the case of a single transaction or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)a series of related transactions, (2), (3), (4) or (5ii) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) $300.0 million aggregate amount in any fiscal year, the Issuers shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of Securities and to all holders of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)Indebtedness containing provisions similar to those set forth in this Indenture with respect to Asset Sales, from to purchase the holders maximum principal amount of such Securities and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case appropriate, that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes thereof (or in the event such Pari Passu Indebtedness was issued with original issue discount, 100% of the principal amount thereof), plus accrued and unpaid interest, if any (or accreted valuesuch lesser price, if any, as may be provided by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoingclosing of such offer, if at any time any non-cash consideration received by in accordance with the Company or any Restricted Subsidiaryprocedures set forth in this Section 4.06 and, as in the case may beof Securities, is in connection with any a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Issuers shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration)Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed (i) $150.0 million, then such conversion in the case of a single transaction or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
a series of related transactions, or (eii) The Company may defer the Net Proceeds Offer until there is an $300.0 million aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as any fiscal year by sending the notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicable, Securities or the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, other Pari Passu Indebtedness tendered surrendered by such Holders and holders thereof exceeds the holders thereof) will amount of Excess Proceeds, the Issuers shall select the Securities and such other Pari Passu Indebtedness to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount Securities or accreted value, as the case may be, of any such other Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A , and in the case of an Asset Sale Offer being effected in advance of being required to do so by this Indenture, the amount of Net Cash Proceeds the Issuers are offering to apply in such Asset Sale Offer shall remain open for a period be excluded in subsequent calculations of 20 Business Days or such longer period as may be required by applicable lawExcess Proceeds.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under Section 3.09 or described in this Section 4.10 Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Cash Proceeds from the Asset Sale (or Asset Sales) pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such complianceallocation with the provisions of Section 4.06(b). Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company. On such date, the Company shall also irrevocably deposit with the Paying Agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as a Paying Agent, segregate and hold in trust) a sum sufficient to pay the purchase price for the Securities or portions thereof that have been properly tendered to and are to be accepted by the Company pursuant to such Asset Sale Offer. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price for such Securities. In the event that the Excess Proceeds delivered by the Company to the Paying Agent is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company on the Business Day following the expiration of the Offer Period.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice of an Asset Sale Offer at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives, not later than two Business Days prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Securities for purchase shall be made by the Issuers in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not listed, by lot or such other method as the Issuers shall deem fair and appropriate (and in such manner as complies with applicable requirements of the Depository); provided that the Issuers shall not select Securities for purchase which would result in a Holder with a principal amount of Securities less than the minimum denomination to the extent practicable.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities (with a copy to the Trustee) at such Holder’s registered address (or otherwise in accordance with the Depository’s procedures). If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Security; provided that global Securities will be reduced in accordance with the applicable procedures of DTC to reflect the unpurchased portion of any such Security. On and after the purchase date, unless the Issuers default in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 2 contracts
Samples: Indenture (Safeway Stores 42, Inc.), Indenture (Albertsons Companies, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (or any of the Restricted SubsidiarySubsidiaries, 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 (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Subsidiary Guarantee) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of the Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.0% of Consolidated Total Assets and $70 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repayrepay Secured Indebtedness, prepayincluding Indebtedness under the Credit Agreement (and, redeem if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) or repurchase Indebtedness of a Foreign Subsidiary or Pari Passu Indebtedness (other than Subordinated provided that if the Company or any Guarantor shall so reduce Obligations under unsecured Pari Passu Indebtedness) , the Company shall equally and other ratably reduce Obligations under the Securities by making an offer (other than Subordinated Indebtedness);
(2in accordance with the procedures set forth below for an Asset Sale Offer) to acquire all or substantially all Holders to purchase at a purchase price equal to 100% of the assets of another Related Businessprincipal amount thereof, or to acquire any Equity Interests of another Related Businessplus accrued and unpaid interest and Additional Interest, if, after giving effect to any such acquisition of Equity Interestsif any, the Related Business is pro rata principal amount of Securities) or becomes Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;,
(3ii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary), assets, or property or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; , or
(5iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a combination of prepayments and investments permitted by the foregoing clauses (1Person, such acquisition results in such Person becoming a Restricted Subsidiary), (2), (3properties or assets that replace the properties and assets that are the subject of such Asset Sale. In the case of Sections 4.06(b)(ii) and (4iii), a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment; provided that in the Company and its Restricted Subsidiaries will be deemed to have applied event such binding commitment is later canceled or terminated for any reason before such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceedsare so applied, the Company has entered or such Restricted Subsidiary may satisfy its obligation as to any Net Proceeds by entering into and not abandoned or rejected a another binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed commitment within 180 days after the end nine months of such 365-day period.
(c) cancellation or termination of the prior binding commitment; provided, further that the Company or such Restricted Subsidiary may only enter into such a commitment under the foregoing provision one time with respect to each Asset Sale. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not otherwise prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Any Net Proceeds from any Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) of this Section 4.06(b), shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the “Net aggregate amount of Excess Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Dateexceeds $20.0 million, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to shall make an offer to repurchase or all Holders of Securities (and, at the option of the Company, to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”), from ) to purchase the holders maximum principal amount of Securities (and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value), as the case that is at least $2,000 and an integral multiple of $1,000 that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of thereof (or, in the Notes (or event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the principal amount or accreted valuevalue thereof), plus accrued and unpaid interest and Additional Interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $20.0 million by delivering the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes Securities (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and such Pari Passu Indebtedness) tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $2,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be delivered electronically or mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 2 contracts
Samples: Indenture (MPM Silicones, LLC), Indenture (MPM Silicones, LLC)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate directly or indirectly consummate, an Asset Sale Sale, unless:
(1) the Company (Issuer or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company Issuer or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes (in the case of the Issuer) or any Subsidiary Guarantee) the Guarantees (in the case of such Restricted Subsidiary), that are assumed by the transferee of any such assets;assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(B) any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the closing of such Asset Sale, and
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as , shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 360 days after the receipt of any Net Proceeds of any Asset Sale, the Company Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:Sale directly or indirectly through the Issuer or one or more of its Restricted Subsidiaries,
(1) to repay, prepay, redeem permanently reduce:
(A) Obligations under the Notes or repurchase any other Senior Indebtedness of the Issuer or any Guarantor (other than Subordinated Obligations owed to the Issuer or a Restricted Subsidiary) and, in the case of Obligations under revolving credit facilities or other similar Indebtedness) and other , to correspondingly permanently reduce commitments with respect thereto; provided that if the Issuer or any Restricted Subsidiary shall so reduce Obligations under any Senior Indebtedness that is not secured by a Lien (other than Subordinated Indebtednessthe Notes), the Issuer or such Guarantor will, equally and ratably, reduce Obligations under the Notes by, at its option, (i) redeeming Notes pursuant to Section 3.07 of this Indenture, (ii) making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued and unpaid interest and Special Interest, if any, on the principal amount of Notes to be repurchased or (iii) purchasing Notes through open market purchases (to the extent such purchases are at a price equal to or higher than 100% of the principal amount thereof) in a manner that complies with this Indenture and applicable securities law; or
(B) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or another Restricted Subsidiary;
(2) to acquire all make (A) an Investment in any one or substantially all more businesses; provided that such Investment in any business is in the form of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the Related Business is or becomes case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary Subsidiary, (B) capital expenditures or (C) acquisitions of other assets, in the Company;case of each of (A), (B) and (C), used or useful in a Similar Business; or
(3) to make (A) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a capital expenditure;
Restricted Subsidiary, (4B) to acquire properties or (C) acquisitions of other assets that, in the case of each of (A), (B) and (C), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or such other than securities or current assets) Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be used applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or useful terminated for any reason before the Net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a Related Business“Second Commitment”) within 180 days of such cancellation or termination; or
(5provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds. Any Net Proceeds from Asset Sales that are not invested or applied as provided and within the time period set forth in Section 4.10(b) a combination shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of prepayments and investments Excess Proceeds exceeds $50.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required or permitted by the foregoing clauses terms of any Senior Indebtedness, to the holders of such Senior Indebtedness (1an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Senior Indebtedness that, in the case of the Notes, is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof and that may be 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 Special Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $50.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or other such Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the administrative agent or trustee for such other Senior Indebtedness shall select such other Senior Indebtedness to be purchased on a pro rata basis (2)with adjustments as needed so that no Note in an unauthorized denomination is purchased in part) based on the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon completion of any such Asset Sale Offer, (3) and (4)the amount of Excess Proceeds shall be reset at zero. Additionally, the Issuer may, at its option, make an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale; provided that the Company and its Restricted Subsidiaries will such Asset Sale Offer shall be in an aggregate amount of not less than $50.0 million. Upon consummation of such Asset Sale Offer, any Net Proceeds not required to be used to purchase Notes shall not be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Excess Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such any Net ProceedsProceeds pursuant to this Section 4.10, the Company Issuer or any Restricted Subsidiary may apply such Net Proceeds temporarily to reduce borrowings Indebtedness outstanding under the Credit Facilities or any other a revolving credit facility, if any, facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 The Issuer shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or described in this Section 4.10 Indenture by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Indenture (Laureate Education, Inc.), Indenture (Laureate Education, Inc.)
Asset Sales. (a) The Company Issuers will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
: (1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; (2) such fair market value is determined by (a) an Officer if the value is less than $5.0 million, as approved in good faith evidenced by an Officers' Certificate delivered to the Company’s Trustee or (b) the Board of DirectorsDirectors if the value is $5.0 million or more, as evidenced by a Board Resolution delivered to the Trustee; and
provided that if the transaction closes more than 90 days after the date hereof and the value is greater than $25 million, the Board of Directors shall have received a fairness opinion from a nationally recognized investment banking firm that the transaction is fair to the Company from a financial point of view; and (23) at least 75% of the consideration therefore received in the Asset Sale by the Company or such the Restricted Subsidiary is in the form of cash or cash, Cash Equivalents, a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business, or any combination thereof. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)Section 5.14, each of the following shall be deemed to be cash:
: (A1) any liabilities (as shown on the Company’s 's or such the Restricted Subsidiary’s '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;
assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability; and (B2) any securities, notes or other obligations received by the Company or any such the Restricted Subsidiary from such transferee that within 180 days are converted by such issuer or the Company or such the Restricted Subsidiary into cash within 45 days after the Asset Sale (subject to ordinary settlement periods) to the extent of the cash received in that such conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) . Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or a Restricted Subsidiary may apply such Restricted Subsidiary, Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
option (1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all repay Senior Debt of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and and/or its Restricted Subsidiaries will be deemed (or to have applied make an offer to repurchase or redeem Senior Debt, provided that such Net Proceeds pursuant to clause (2), (3) repurchase or (4) of this Section 4.10(b), as applicable, if and to the extent that, redemption closes within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 45 days after the end of such 365360-day period.
) with a permanent reduction in availability for any revolving credit Indebtedness; (c2) to make a capital expenditure in a Permitted Business; (3) to acquire other long-term assets that are used or useful in a Permitted Business; or (4) to acquire at least 51% of the Equity Interests in a Permitted Business. Pending the final application of any such Net Proceeds, the Company Issuers or any such Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as first sentence of this paragraph will constitute "EXCESS PROCEEDS." When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses exceeds $10.0 million, the Issuer will make a pro rata offer (1), (2), (3), (4an "ASSET SALE OFFER") or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereoninterest, if any, and premium, if any, to the Net date of purchase, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use such Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro -55- rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturebasis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this covenant or Section 3.09 or this Section 4.103.3, each of the Company or such Restricted Subsidiary shall Issuers will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its their obligations under Section 3.09 or this Section 4.10 covenant by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Indenture (Eott Energy Finance Corp), Indenture (Eott Energy Finance Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) in the event of an Asset Sale involving assets or Equity Interests having a Fair Market Value in excess of $5.0 million, as approved in good faith such Fair Market Value is determined by the Company’s Board chief financial officer and set forth in an Officers’ Certificate delivered to the Trustee at or promptly following the completion of Directorssuch Asset Sale;
(3) in the event of an Asset Sale involving assets or Equity Interests having a Fair Market Value in excess of $10.0 million, the Company shall have received an opinion as to the fairness to the Company or relevant Subsidiary of such Asset Sale from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing; and
(24) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 assetsassets 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 any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 180 days following the consummation of such Asset Sale, to the extent of the cash received in that conversion);; and
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company Company, or such the applicable Restricted Subsidiary, as the case may be, may apply those Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase repay Indebtedness (other than Subordinated Indebtedness) and other Obligations under Credit Facilities to the extent contractually senior or otherwise subject to security interests of a senior priority to the Notes;
(other than Subordinated Indebtedness2) to repay or repurchase Old 2017 Notes existing on the date of this Indenture to the extent permitted under clause (10) of Section 4.07(c);
(23) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(34) to make a capital expenditureexpenditures;
(45) to acquire other assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; orand/or
(56) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that preceding. Pending the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) final application of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the any Net Proceeds, the Company has entered into and may temporarily reduce revolving credit borrowings under any Credit Facilities that are contractually senior or otherwise subject to security interests of a senior priority to the Notes, or otherwise invest the Net Proceeds in any manner that is not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of prohibited by this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day periodIndenture.
(c) Pending Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) of this Indenture will constitute “Excess Proceeds.” When the final application aggregate amount of such Net ProceedsExcess Proceeds exceeds $10.0 million, the Company or any Restricted Subsidiary may temporarily reduce borrowings under will notify the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after Trustee and make an Asset Sale or such earlier dateOffer to all Holders of Notes and, if any, as at the Board of Directors option of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if unless otherwise required by the terms of any the Asset Sale Offer, all holders of other Indebtedness of the Company ranking that is pari passu with the Notes in right of payment and which has similar provisions requiring to purchase the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusand such other Indebtedness that is pari passu with the Notes, if applicable, an aggregate principal amount or accreted value, as that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net date of purchase, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plusand other Indebtedness that is pari passu with the Notes that is Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, if applicableand the Notes are Global Notes held by DTC, DTC will select the notes in accordance with its operation arrangements. If the Notes are not Global Notes held by DTC, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will notes to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturebasis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or Section 4.10 of this Section 4.10Indenture, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or those provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Apparel Holding Corp.), Indenture (Apparel Holding Corp.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (Company, or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directors; and
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company Company, or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheetsheet or in the notes thereto) 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 GuaranteeSecurities) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.5% of Consolidated Total Assets or $100.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b)4.06.
(b) Within 365 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repaypermanently reduce Obligations under the Credit Agreement (and, prepayin the case of revolving Obligations, redeem to correspondingly reduce commitments with respect thereto) or repurchase other Senior Indebtedness (other than Subordinated provided that if the Company shall so reduce Obligations under Senior Indebtedness) , it shall equally and other ratably reduce Obligations under the Securities by making an offer (other than Subordinated Indebtedness);
(2in accordance with the procedures set forth below for an Asset Sale Offer) to acquire all or substantially all Holders to purchase at a purchase price equal to 100% of the assets of another Related Businessprincipal amount thereof, or to acquire any Equity Interests of another Related Businessplus accrued and unpaid interest and additional interest, if, after giving effect to any such acquisition of Equity Interestsif any, the Related Business is pro rata principal amount of Securities) or becomes Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;,
(3ii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of such business), or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; or, and/or
(5iii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a combination Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of prepayments and investments permitted by the foregoing clauses (1such business), (2), (3) properties or assets that replace the properties and (4); provided assets that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end subject of such 365-day period.
(c) Asset Sale. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute "Excess Proceeds." When the “Net aggregate amount of Excess Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Dateexceeds $20.0 million, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to shall make an offer to repurchase or all Holders of Securities (an "Asset Sale Offer") to otherwise repurchase, redeem or repay such Indebtedness with purchase the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes Securities, that is an integral multiple of (pluseurodollar)1,000, if applicable, that may be purchased out of the Excess Proceeds at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued and unpaid interest thereonand additional interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $20.0 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) Securities tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e) below. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the paying agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06 above.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of (eurodollar)1,000 or less shall be purchased in part.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder's registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that is to be purchased. So long as the Securities are listed on the Luxembourg Stock Exchange, such notices shall also be published in a Luxembourg newspaper of general circulation.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancelation of the original Security. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 2 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (Company, or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directors; and
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company Company, or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheetsheet or in the notes thereto) 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 GuaranteeSecurities) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.5% of Consolidated Total Assets or $100.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b)4.06.
(b) Within 365 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repaypermanently reduce Obligations under the Credit Agreement (and, prepayin the case of revolving Obligations, redeem to correspondingly reduce commitments with respect thereto) or repurchase other Senior Indebtedness (other than Subordinated provided that if the Company shall so reduce Obligations under Senior Indebtedness) , it shall equally and other ratably reduce Obligations under the Securities by making an offer (other than Subordinated Indebtedness);
(2in accordance with the procedures set forth below for an Asset Sale Offer) to acquire all or substantially all Holders to purchase at a purchase price equal to 100% of the assets of another Related Businessprincipal amount thereof, or to acquire any Equity Interests of another Related Businessplus accrued and unpaid interest and additional interest, if, after giving effect to any such acquisition of Equity Interestsif any, the Related Business is pro rata principal amount of Securities) or becomes Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;,
(3ii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of such business), or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; or, and/or
(5iii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a combination Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of prepayments and investments permitted by the foregoing clauses (1such business), (2), (3) properties or assets that replace the properties and (4); provided assets that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end subject of such 365-day period.
(c) Asset Sale. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute "Excess Proceeds." When the “Net aggregate amount of Excess Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Dateexceeds $20.0 million, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to shall make an offer to repurchase or all Holders of Securities (an "Asset Sale Offer") to otherwise repurchase, redeem or repay such Indebtedness with purchase the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusSecurities, if applicablethat is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued and unpaid interest thereonand additional interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $20.0 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) Securities tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e) below. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the paying agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06 above.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $1,000 or less shall be purchased in part.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder's registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that is to be purchased. So long as the Securities are listed on the Luxembourg Stock Exchange, such notices shall also be published in a Luxembourg newspaper of general circulation.
(g) A new Security in principal amount equal to the unpurchased portion of any Security purchased in part shall be issued in the name of the Holder thereof upon cancelation of the original Security. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Securities or portions thereof purchased.
Appears in 2 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
Asset Sales. Cause or make an Asset Sale, unless (ax) The the Company will not, and will not permit or any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration at the time of such Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Aa) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Loans or any Subsidiary Guaranteesuch Restricted Subsidiary’s obligations in respect of the Loans) that are assumed by the transferee of any such assets;,
(Bb) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within one hundred eighty (180) days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Cc) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.53.0% of the Consolidated Total Net Tangible Assets of the Company and $600,000,000 at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be Cash Equivalents for the earliest date that the Net Proceeds Offer Amount is equal to or in excess purposes of $200.0 million)this provision.
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Senior Secured Asset Based Credit Agreement (LyondellBasell Industries N.V.), Credit Agreement (LyondellBasell Industries N.V.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directorsthe assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For ; provided, however, that, for purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)no other purpose, 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 sheetsheet or in the footnotes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Notes, that are assumed by the transferee of any such assets;assets and with respect to which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(B) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Sale to the extent of the cash received in that such conversion);, and
(C) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 150.0 million and (b) 3.56% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 450 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such any Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:,
(1) to repay, prepay, redeem or repurchase permanently reduce:
(A) Obligations under the Senior Indebtedness and to correspondingly reduce commitments with respect thereto;
(B) Obligations under other Senior Subordinated Indebtedness (and to correspondingly reduce commitments with respect thereto), provided, however, that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(C) Indebtedness of a Restricted Subsidiary that is not a U.S. Issuer or a Guarantor, other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);Indebtedness owed to the Company or another Restricted Subsidiary; or
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Companyto:
(A) make capital expenditures;
(3B) either (i) make Restricted Payments pursuant to make a capital expenditureclause (17) of Section 4.07(b) hereof or (ii) redeem Notes and Senior Notes in accordance with Section 3.10 hereof in each case with the proceeds of Designated Asset Sales;
(4C) to make an Investment in any one or more businesses; provided, however, that any such Investment is in the form of the acquisition of Capital Stock and results in such business becoming a Restricted Subsidiary; or
(D) acquire properties or other assets assets, that, in the case of each of clauses (other than securities or current assetsC) that will be and (D), are either used or useful in a Related Business; or
(5) a combination Similar Business or replace the businesses, properties and /or assets that are the subject of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)such Asset Sale; provided further, however, that a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company and its or such other Restricted Subsidiaries will be deemed to have applied Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds pursuant will be applied to clause satisfy such commitment within 180 days of such commitment (2)an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (3a “Second Commitment”) within 180 days of such cancellation or termination; provided, however, that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(4c) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after Any Net Proceeds from the Asset Sale that generated are not invested or applied as provided and within the Net time period set forth in Section 4.10(b) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuers shall make an offer to all Holders of the Notes and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Pari Passu Indebtedness that is in a minimum amount of $2,000 and an integral multiple of $1,000 in excess thereof that may be 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 Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $25.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company has entered into and not abandoned Issuers may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or rejected a binding agreement to consummate any reinvestment described in clause (2)the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, (3) or (4) of this paragraph, the Trustee shall select the Notes and such reinvestment is thereafter completed within 180 days after Pari Passu Indebtedness to be purchased on a pro rata basis based on the end accreted value or principal amount of the Notes or such 365-day periodPari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(cd) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds, the Company or any Restricted Subsidiary Proceeds may apply such Net Proceeds temporarily to reduce borrowings Indebtedness outstanding under the Credit Facilities or any other a revolving credit facility, if any, facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, Issuers shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under Section 3.09 or set forth in this Section 4.10 Indenture by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Indenture (Avago Technologies LTD), Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration therefor at the time of such Asset Sale at least equal to the fair market value (measured as at the time of such Asset Sale of the date of the definitive agreement with respect to such Asset Sale) of the property, assets or Equity Interests issued or stock sold or otherwise disposed of, of (as approved determined in good faith by the Company’s Board of Directors; and);
(2) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash or cash, Cash Equivalents. For Equivalents and/or Replacement Assets (as defined) and is received at the time of such disposition; provided that, for purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall be deemed to be cash:
(A) the amount of any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Subsidiary GuaranteeGuarantee of a Guarantor) that are assumed by the transferee of any such assets;
, (B) the fair market value of any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
or Cash Equivalents within 360 days after such Asset Sale and (C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause subclause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.51.0% of Consolidated Total Assets and $50.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), in each case shall be deemed to be cash for purposes of this provision; and
(D3) Upon the fair market value (measured as consummation of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any an Asset Sale, the Company shall apply, or cause such Restricted SubsidiarySubsidiary to apply, at its option, may apply an amount equal to the Net Cash Proceeds from relating to such Asset SaleSale within 360 days of receipt thereof either:
(1A) to repay, prepay, redeem permanently reduce Indebtedness under a Bank Facility or repurchase to permanently repay any secured Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary or any Indebtedness of any Restricted Subsidiary that is not a Guarantor;
(B) to make an investment in properties and other Obligations assets (other than Subordinated Indebtednessincluding Capital Stock) that replace the properties and assets that were the subject of such Asset Sale or in properties and assets that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”);
(2C) to acquire repay other Pari Passu Indebtedness; provided that the Company shall also equally and ratably reduce Indebtedness under the Notes by making an offer (in accordance with the procedures set forth below for a Net Proceeds Offer) to all or substantially all Holders to purchase the pro rata principal amount of Notes, in each case at a purchase price equal to 100% of the assets principal amount thereof, plus accrued and unpaid interest to the repurchase date (subject to the right of another Related Business, or holders of record on the relevant record date to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, receive interest due on the Related Business is or becomes a Restricted Subsidiary of the Company;relevant Interest Payment Date); and/or
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5D) a combination of prepayments prepayment and investments investment permitted by the foregoing clauses (1), A) - (2), (3) and (4C); provided that in the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds case of an investment in Replacement Assets pursuant to clause (2), (3B) or (4D) above, a binding commitment shall be treated as a permitted application of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net ProceedsCash Proceeds from the date of such commitment and, in the event such binding commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are so applied, the Company has entered or such Restricted Subsidiary enters into and not abandoned or rejected a another binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed commitment within 180 days after the end of such 365-day periodcancellation or termination of the prior binding commitment.
(cb) Pending the final application of such Net Cash Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities Bank Facility or any other revolving credit facility, if any, facility or otherwise invest such the Net Cash Proceeds in any manner not prohibited by this the Indenture. Subject to Section 4.10(e), on On the 366th 361st day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause clauses (1), (2), (3), (4) or (53)(A)-(D) of Section 4.10(b4.07(a) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which have (rounded down to the nearest $1,000) that has not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (53)(A)-(D) of Section 4.10(b) the preceding paragraph or the last provision of this paragraph (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 15 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms and holders of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal maximum amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and Pari Passu Indebtedness) Indebtedness equal to the Net Proceeds Offer Amount. The offer Amount at a price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such and Pari Passu Indebtedness)Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, date of purchase; provided that if at any time any non-cash consideration received by the Company or any Restricted SubsidiarySubsidiary 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 4.104.07.
(ec) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 25.0 million resulting from one or more Asset Sales (at which time time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 25.0 million, shall be applied as required pursuant to this Section 4.104.07).
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.07, and in which case shall comply with the Net Proceeds Offer Trigger Date provisions of this Section 4.07with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be the earliest date that the Net Cash Proceeds Offer Amount is equal to or in excess for purposes of $200.0 million)this Section 4.07.
(fe) Each Net Proceeds Offer will be sent 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 3.09the Indenture, and in the case of Global Notes, the procedures of the Depositary. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part (in minimum denominations amounts of $2,000 or and integral multiples of $1,000 in excess thereof thereof) in exchange for cash. To the extent that the aggregate principal amount of Holders properly tender Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, and holders of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes of tendering Holders (and, if applicable, and Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal aggregate amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such and Pari Passu Indebtedness tendered (and not withdrawn). To the extent that Trustee shall select the aggregate tendered Notes of tendering Holders on a pro rata basis based on the amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zeroIndebtedness tendered). A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer or shorter period as may be required or permitted, respectively, by applicable law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use those Net Cash Proceeds for any purpose not otherwise prohibited by the Indenture. Upon completion of each Net Proceeds Offer, the amount of Net Cash Proceeds will be reset at zero.
(gf) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.07, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.07 by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Equinix Inc), First Supplemental Indenture (Equinix Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company (or 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 (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of (a) cash or Cash Equivalents. For purposes Equivalents or (b) Qualified Proceeds, provided, that the aggregate fair market value of Qualified Proceeds that may be received pursuant to this clause (ii)(b) shall not exceed an aggregate of $10.0 million after the date of this provision only Indenture; provided further, that the amount of (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Ax) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) ), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets;
assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are promptly (and in any event, in not more than 30 days) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received in that conversionor Cash Equivalents received);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant shall be deemed to be cash for purposes of this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)provision.
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds at its option to (i) repay revolving indebtedness or other obligations either under the Revolving Credit Agreement or the Gold Consignment Agreement (or a substantially similar gold consignment agreement pursuant to clause Section 4.09(b)(iv)(y)(b) hereof) or a combination thereof (2), (3and to correspondingly permanently reduce revolving borrowing commitments or revolving consignment commitments or a combination thereof with respect thereto) or (4ii) the acquisition of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceedsa controlling interest in another business, the making of capital expenditures or the acquisition of other assets used or useable, in each such case, in the business engaged in by the Company has entered into and not abandoned or rejected any of its Subsidiaries on the date hereof or in a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) business reasonably related thereto. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, Senior Revolving Debt or otherwise invest make an Investment of such Net Proceeds in any manner that is not prohibited by the terms of this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board first sentence of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of this Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such will be deemed to constitute "Excess Proceeds". When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $10.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders of Notes (and, if required by the terms of any other Indebtedness of the Company ranking pari passu an "Asset Sale Offer") in accordance with the Notes in right provisions of payment and which has similar provisions requiring Section 3.09 hereof to purchase the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusthat may be purchased out of such Excess Proceeds, if applicable, at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), thereof plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed date 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)purchase. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company shall make an offer to all holders of Senior Debentures in accordance with the provisions of Section 3.09 hereof and on the same terms and conditions offered to Holders of Notes (plusto purchase the maximum principal amount of Senior Debentures that may be purchased out of the remaining Excess Proceeds. To the extent that the aggregate amount of Senior Debentures tendered pursuant to any such offer is less than the remaining Excess Proceeds, if applicable, the Company or any of its Subsidiaries may use any remaining Excess Proceeds for general corporate purposes or otherwise make an Investment of such remaining amounts in any manner that is not prohibited by this Indenture. If the aggregate principal amount of Notes (or accreted valueDebentures, as the case may be, ) surrendered by Holders (or holders) thereof exceeds the amount of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes Trustee shall select the Notes (or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall Debentures) to be reset at zero. A Net Proceeds Offer shall remain open for purchased on a period of 20 Business Days or such longer period as may be required by applicable lawpro rata basis.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Finlay Enterprises Inc /De), Indenture (Finlay Fine Jewelry Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1) the Company (or the any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration (including by way of relief or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the fair market value Fair Market Value (measured as of determined on the date of the definitive agreement with respect to such Asset Salecontractual obligation is entered into) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assets;
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);; and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 1,000 million and (by) 3.54.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall each be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of any the Net Cash Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary of the Company may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(1i) to repayrepay Obligations under the Credit Facilities that are secured by a Lien (and in the case of revolving obligations, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtednessto correspondingly permanently reduce commitments with respect thereto);
(2ii) to acquire all repay either (A) Obligations under the Securities or substantially all (B) Obligations under any other Pari Passu Indebtedness (and in the case of the assets of another Related Businessrevolving obligations, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4correspondingly permanently reduce commitments with respect thereto); provided that in the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds case of any repayment pursuant to clause (2B), the Company or such Restricted Subsidiary will reduce Obligations under the Securities on an equal or ratable basis with the Pari Passu Indebtedness repaid pursuant to clause (B) (1) on a pro rata basis as provided under Article 3 hereof, (2) through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (3) or by making an offer (4in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Securities at 100% of this Section 4.10(b)the principal amount thereof, as applicableplus the amount of accrued but unpaid interest, if and any, on the amount of Securities that would otherwise be prepaid (which offer shall be deemed to the extent that, within 365 days after the be an Asset Sale Offer for purposes hereof); and/or
(iii) to acquire Additional Assets; provided that generated in the case of clause (iii) above, a binding commitment (whether or not subject to conditions) shall be treated as a permitted application of the Net ProceedsCash Proceeds from the date of such commitment and, in the event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company has entered or such Restricted Subsidiary enters into and another binding commitment (whether or not abandoned or rejected a binding agreement subject to consummate any reinvestment described in clause (2), (3conditions) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end six months of such 365-day period.
(c) cancellation or termination of the prior binding commitment. Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest use such Net Cash Proceeds in for any manner purpose not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Any Net Cash Proceeds from any Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4the first sentence of this Section 4.06(b) or (5) of Section 4.10(b) (each, a shall be deemed to constitute “Net Proceeds Offer Trigger Date”), such Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which have not been applied on exceeds (i) $150.0 million, in the case of a single transaction or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)a series of related transactions, (2), (3), (4) or (5ii) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) $300.0 million aggregate amount in any fiscal year, the Issuers shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of Securities and to all holders of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)Indebtedness containing provisions similar to those set forth in this Indenture with respect to Asset Sales, from to purchase the holders maximum principal amount of such Securities and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case appropriate, that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes thereof (or in the event such Pari Passu Indebtedness was issued with original issue discount, 100% of the principal amount thereof), plus accrued and unpaid interest, if any (or accreted valuesuch lesser price, if any, as may be provided by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 this Section 3.09. Upon receiving notice 4.06 and, in the case of the Net Proceeds OfferSecurities, Holders may elect to tender their Notes is in whole or in part in a minimum denominations amount of $2,000 or an integral multiples multiple of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.excess
Appears in 2 contracts
Samples: Indenture (Safeway Stores 42, Inc.), Indenture (Albertsons Companies, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:: 50
(1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Company delivers to the Trustee:
(A) with respect to any Asset Sale, as approved in good faith by a resolution of the Company’s Board of DirectorsDirectors set forth in an Officers' Certificate certifying that the consideration received at the time of the Asset Sale was at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2B) with respect to any Asset Sale or series of Asset Sales involving aggregate consideration in excess of $20.0 million, an opinion as to the fairness to the Holders of such Asset Sale from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing; and
(3) at least 7580% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalentscash equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s '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 Note Guarantee) that are assumed by the transferee of any such assets;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 any such Restricted Subsidiary from such transferee that within 180 days are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (within 180 days, to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) . Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or may apply such Restricted Subsidiary, Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay Indebtedness under the Credit Facilities and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3) to make a capital expenditure;; or
(4) to acquire other long-term assets (other than securities or current assets) and parking facility agreements, in each case, that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureIndenture or the Credit Agreement. Subject to Section 4.10(e), on the 366th day (51 Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after paragraph will constitute "EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will make an Asset Sale or such earlier date, if any, as Offer to all Holders of Notes and all holders of other Indebtedness that is PARI PASSU with the Board of Directors of the Company or of such Restricted Subsidiary determines not Notes containing provisions similar to apply the Net Proceeds relating to such Asset Sale as those set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary this Indenture with respect to make an offer offers to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets in accordance with Section 3.09 hereof to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other PARI PASSU Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonand Liquidated Damages, if any, to the Net date of purchase, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consumption 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 Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture or the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09Credit Agreement. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee shall select the case may be, of Pari Passu Indebtedness) validly tendered by Notes and the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Company shall select such other PARI PASSU Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other PARI PASSU Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section Sections 3.09 or 4.10 of this Section 4.10Indenture, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or those provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Apcoa Standard Parking Inc /De/), Indenture (Ap Holdings Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (Company, or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directors; and
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company Company, or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheetsheet or in the notes thereto) 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 GuaranteeSecurities) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.5% of Consolidated Total Assets or $100.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b)4.06.
(b) Within 365 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repaypermanently reduce Obligations under the Credit Agreement (and, prepayin the case of revolving Obligations, redeem to correspondingly reduce commitments with respect thereto) or repurchase other Senior Indebtedness, including the Senior Notes, or Pari Passu Indebtedness (other than Subordinated provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness) , it shall equally and other ratably reduce Obligations under the Securities by making an offer (other than Subordinated Indebtedness);
(2in accordance with the procedures set forth below for an Asset Sale Offer) to acquire all or substantially all Holders to purchase at a purchase price equal to 100% of the assets of another Related Businessprincipal amount thereof, or to acquire any Equity Interests of another Related Businessplus accrued and unpaid interest and additional interest, if, after giving effect to any such acquisition of Equity Interestsif any, the Related Business is pro rata principal amount of Securities) or becomes Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Indebtedness owed to the Company or an Affiliate of the Company;,
(3ii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of such business), or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; or, and/or
(5iii) to make an investment in any one or more businesses (provided that such investment in any business may be in the form of the acquisition of Capital Stock so long as it results in the Company or a combination Restricted Subsidiary, as the case may be, owning substantially all the Capital Stock of prepayments and investments permitted by the foregoing clauses (1such business), (2), (3) properties or assets that replace the properties and (4); provided assets that are the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end subject of such 365-day period.
(c) Asset Sale. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute "Excess Proceeds." When the “Net aggregate amount of Excess Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Dateexceeds $20.0 million, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to shall make an offer to repurchase or all Holders of Securities (an "Asset Sale Offer") to otherwise repurchase, redeem or repay such Indebtedness with purchase the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes Securities, that is an integral multiple of (plusU)1,000, if applicable, that may be purchased out of the Excess Proceeds at an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus accrued and unpaid interest thereonand additional interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceeds $20.0 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) Securities tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e) below. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers' Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the paying agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancelation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee is greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06 above.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of (U)1,000 or less shall be purchased in part.
Appears in 2 contracts
Samples: Indenture (TRW Automotive Inc), Indenture (TRW Automotive Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the The Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsMarketable Securities. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, 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 of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets and as a result of which, the Company or such Restricted Subsidiary of the Company are released from any further liability in connection therewith;
(B) any securities, notes or notes, other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since less the Issue Date that amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is at the time outstanding, not to exceed less than the greater of (ax) $300.0 million and (b) 3.52.50% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (y) $35.0 million; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests Capital Stock or assets of the kind referred to in clauses clause (2) or (4) of the next paragraph of this Section 4.10(b).
(b) 4.10. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase repay (w) Indebtedness (other than Subordinated Indebtedness) and other Obligations constituting Senior Indebtedness, (x) any Indebtedness that was secured by the assets sold in such Asset Sale, (y) other pari passu Indebtedness (provided that the Company shall also equally and ratably reduce Indebtedness under the Notes by making an offer (in accordance with the procedures set forth below for an Asset Sale) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Notes), or (z) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Subordinated Indebtedness)Indebtedness owed to any Parent, the Company or any of their respective Affiliates;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests Capital Stock of, another Permitted Business; provided that in the case of another Related Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;; or
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Dresser-Rand Group Inc.), Indenture (Dresser-Rand Group Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directorsthe assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For ; provided, however, that, for purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)no other purpose, 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 sheetsheet or in the footnotes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Notes, that are assumed by the transferee of any such assets;assets and with respect to which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(B) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Sale to the extent of the cash received in that such conversion);, and
(C) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 150.0 million and (b) 3.56% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 450 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such any Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:,
(1) to repaypermanently reduce:
(A) Obligations under the Senior Credit Facilities, prepay, redeem or repurchase and to correspondingly reduce commitments with respect thereto;
(B) Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien, which Lien is permitted by this Indenture, and to correspondingly reduce commitments with respect thereto;
(C) Obligations under other Obligations Indebtedness (other than Subordinated Indebtedness) (and to correspondingly reduce commitments with respect thereto);, provided, however, that the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; or
(D) Indebtedness of a Restricted Subsidiary that is not a U.S. Issuer or Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary; or
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Companyto:
(A) make capital expenditures;
(3B) either (i) make Restricted Payments pursuant to make a capital expenditureclause (17) of Section 4.07(b) hereof or (ii) redeem Notes in accordance with Section 3.10 hereof in each case with the proceeds of Designated Asset Sales;
(4C) to make an Investment in any one or more businesses; provided, however, that any such Investment is in the form of the acquisition of Capital Stock and results in such business becoming a Restricted Subsidiary; or
(D) acquire properties or other assets assets, that, in the case of each of clauses (other than securities or current assetsC) that will be and (D), are either used or useful in a Related Business; or
(5) a combination Similar Business or replace the businesses, properties and /or assets that are the subject of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)such Asset Sale; provided further, however, that a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Company and its or such other Restricted Subsidiaries will be deemed to have applied Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds pursuant will be applied to clause satisfy such commitment within 180 days of such commitment (2)an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (3a “Second Commitment”) within 180 days of such cancellation or termination; provided, however, that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(4c) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after Any Net Proceeds from the Asset Sale that generated are not invested or applied as provided and within the Net time period set forth in Section 4.10(b) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuers shall make an offer to all Holders of the Notes and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Pari Passu Indebtedness that is in a minimum amount of $2,000 and an integral multiple of $1,000 in excess thereof that may be 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 Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $25.0 million by delivering the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company has entered into and not abandoned Issuers may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes or rejected a binding agreement to consummate any reinvestment described in clause (2)the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, (3) or (4) of this paragraph, the Trustee shall select the Notes and such reinvestment is thereafter completed within 180 days after Pari Passu Indebtedness to be purchased on a pro rata basis based on the end accreted value or principal amount of the Notes or such 365-day periodPari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(cd) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds, the Company or any Restricted Subsidiary Proceeds may apply such Net Proceeds temporarily to reduce borrowings Indebtedness outstanding under the Credit Facilities or any other a revolving credit facility, if any, facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, Issuers shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under Section 3.09 or set forth in this Section 4.10 Indenture by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Indenture (Avago Technologies LTD), Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directorsthe assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Aa) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes (or any Subsidiary GuaranteeGuarantees) or that are owed to the Company or a Restricted Subsidiary, that are assumed by the transferee of any such assets;assets and for which the Company and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(Bb) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the closing of such Asset Sale, and
(Cc) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets 75,000,000 at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 days 18 months after the receipt of any Net Proceeds of any Asset Sale:
(1) by the Company or any Restricted Subsidiary, then the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) Sale to repay, prepay, redeem permanently reduce Obligations under Pari Passu Indebtedness of the Issuer or repurchase Indebtedness the Guarantors (other than Subordinated Indebtednessany Indebtedness under the Senior Credit Facilities) that is secured by a Lien, which Lien is permitted by this Indenture, and other Obligations (other than Subordinated Indebtedness)to correspondingly reduce commitments with respect thereto;
(2) by the Company or any Restricted Subsidiary, then the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale to acquire all permanently reduce Obligations under (i) the 2017 B Notes (to the extent such purchases are at or substantially all above 100.0% of the assets of another Related Business, principal amount thereof) or to acquire (ii) any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary other Pari Passu Indebtedness of the CompanyIssuer or a Guarantor (and to correspondingly reduce commitments with respect thereto); provided, however, that the Issuer shall equally and ratably reduce (or offer to reduce) Obligations under the 2017 B Notes as provided in Section 5 of each of the Notes and Sections 3.02 and 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth in Section 3.09 and Section 4.10(c) hereof) to all Holders of 2017 B Notes to purchase a pro rata amount of 2017 B Notes at 100.0% of the principal amount thereof, plus accrued but unpaid interest;
(3) to make a capital expenditure[Reserved];
(4) [Reserved];
(5) by any Restricted Subsidiary that is not the Issuer or a Guarantor, then such Restricted Subsidiary that is not the Issuer or a Guarantor, at its option, may apply the Net Proceeds of such Asset Sale to permanently reduce Obligations under Indebtedness of Restricted Subsidiaries that are not the Issuer or not Guarantors, and to correspondingly reduce commitments with respect thereto; or
(6) by the Company or any Restricted Subsidiary, then the Company or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale to (a) make an Investment in any one or more businesses; provided, however, that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) acquire properties, (c) make capital expenditures or (d) acquire other assets that, in the case of each of clauses (other than securities or current assetsa), (b), (c) that will be and (d) either (x) are used or useful in a Related BusinessSimilar Business or (y) replace the businesses, properties or assets that are the subject of such Asset Sale; orprovided, however, that, in the case of clause (6) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds shall be applied to satisfy such commitment within the later of 18 months after receipt of such Net Proceeds and 180 days following such commitment; provided further, however, that if such commitment is cancelled or terminated after the later of such 18 month or 180 day period for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(5c) a combination of prepayments Any Net Proceeds from any Asset Sale pursuant to Section 4.10(b) that are not invested or applied as provided and investments permitted by within the foregoing clauses (1), (2), (3time period set forth in Section 4.10(b) and (4); provided that the Company and its Restricted Subsidiaries will hereof shall be deemed to have applied such Net constitute “Excess Proceeds”, except the amount of Excess Proceeds shall be reduced by the sum of the amount of the 2017 B Notes offered to be purchased in an offer pursuant to clause (2), (3) or (4) above and the amount of this Section 4.10(b), as applicable, if and 2017 A Notes offered to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected be purchased in a binding agreement to consummate any reinvestment described in 2017 A Notes Purchase Offer by reason of clause (2) above. When the aggregate amount of Excess Proceeds with respect to the 2017 B Notes exceeds $50,000,000, the Issuer shall make an offer to all Holders of the 2017 B Notes and, if required by the terms of any Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of such 2017 B Notes and the maximum aggregate principal amount (3or accreted value, if less) of such Pari Passu Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 thereof (in aggregate principal amount) that may be 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 to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $50,000,000 by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee or otherwise in accordance with the procedures of DTC. The Issuer, in its sole discretion, may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 18 month period (or such longer period provided above) or with respect to Excess Proceeds of $50,000,000 or less. To the extent that the aggregate principal amount of 2017 B Notes and the aggregate principal amount (4or accreted value, if applicable) of such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds with respect to the 2017 B Notes, the Issuer may use any remaining Excess Proceeds for general corporate purposes, including to make Restricted Payments, subject to the other covenants contained in this paragraphIndenture. If the aggregate principal amount of 2017 B Notes and the aggregate principal amount (or accreted value, if applicable) of the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds with respect to the 2017 B Notes, the Trustee or the Paying Agent shall select the 2017 B Notes and the Issuer or the agent for such reinvestment is thereafter completed within 180 days after Pari Passu Indebtedness shall select such other Pari Passu Indebtedness to be purchased on a pro rata basis based on the end principal amount of the 2017 B Notes and the aggregate principal amount (or accreted value, if applicable) of such 365-day periodPari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(cd) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds, the Company or any Restricted Subsidiary Proceeds may apply such Net Proceeds temporarily to reduce borrowings Indebtedness outstanding under the Credit Facilities or any other a revolving credit facility, if anyincluding under any Credit Facilities, or otherwise invest or apply such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, Issuer shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of the 2017 B Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or described in this Section 4.10 Indenture by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Indenture (CC Media Holdings Inc), Indenture (Clear Channel Outdoor Holdings, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ;
(b) the fair market value is determined by the Company’s Board of DirectorsDirectors and evidenced by a Board Resolution; and
(2c) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash EquivalentsEquivalents and/or Replacement Assets. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A1) any liabilities (liabilities, as shown on the Company’s or such any 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 assetsassets and from which the Company or such Restricted Subsidiary is released from further liability;
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 180 days of receipt, to the extent of the cash received in that conversion);; and
(C3) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C3) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 100 million and (b) 3.52.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) . Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such a Restricted Subsidiary, Subsidiary may apply those Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1a) to repay, prepay, redeem or repurchase purchase (x) Indebtedness of the Company or any Guarantor that is not Subordinated Indebtedness or (other than Subordinated Indebtednessy) and other Obligations (other than Subordinated Indebtedness)any Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(2b) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3c) to make a capital expenditure;
(4d) to acquire Replacement Assets; or
(e) to acquire other long-term assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by . The Company or the foregoing clauses (1), (2), (3) and (4); provided that the Company and its relevant Restricted Subsidiaries Subsidiary will be deemed to have applied complied with the immediately preceding sentence with respect to any such Net Proceeds if it enters into a binding agreement to make an acquisition or capital expenditure permitted pursuant to clause (2b), (3c), (d) or (4e) of this Section 4.10(b)the immediately preceding sentence in an amount equal to such Net Proceeds within such 365 days; provided that, if the relevant acquisition or capital expenditure is not consummated or completed, as applicable, if and to the extent thatcase may be, within the later of (x) 365 days after the Asset Sale that generated receipt of the relevant Net Proceeds, the Company has entered into Proceeds and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3y) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end date of such 365-day periodbinding agreement, such Net Proceeds will constitute “Excess Proceeds.
(c) ” Pending the final application of such any Net Proceeds, the Company or any the Restricted Subsidiary may temporarily reduce borrowings under invest the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph will constitute Excess Proceeds. When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $75 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders of Notes (and, if required by at the terms option of the Company, to holders of any other Indebtedness of the Company ranking pari passu with the Notes in right or any Guarantor that is not Subordinated Indebtedness and/or any Indebtedness of payment and which has similar provisions requiring any Restricted Subsidiary of the Company either to make an offer to repurchase or to otherwise repurchase(collectively, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtednessother indebtedness”), from ) to purchase the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of and such Pari Passu other Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or 1,000 principal amount and in integral multiples of $1,000 in excess thereof in exchange for cash. To the extent thereof; provided, that the aggregate unrepurchased portion of a Note must be in a minimum denomination of $2,000, out of the Excess Proceeds at a purchase price of 100% of their principal amount (or, in the event such other Indebtedness was issued with significant original issue discount, 100% of Notes the accreted value thereof) without premium, plus accrued but unpaid interest (plusor, in respect of such other Indebtedness, such lesser price, if applicable, the aggregate principal amount or accreted valueany, as may be provided for by the case may be, terms of Pari Passu such Indebtedness) validly tendered by in accordance with the Holders thereof and not withdrawn exceeds procedures (including prorating in the Net Proceeds Offer Amount, Notes event of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereofoversubscription) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)set forth in this Indenture. To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu and such other Indebtedness) tendered pursuant to a Net Proceeds Offer such an offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or purposes. If the aggregate principal amount of Notes (and such other Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Company shall allocate the Excess Proceeds among the Notes and such other Indebtedness that have been surrendered for any other purpose not prohibited by this Indenturepurchase on a pro rata basis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.104.08, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 4.08, by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Lifepoint Health, Inc.), Indenture (Lifepoint Hospitals, Inc.)
Asset Sales. (a) The Company will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1) the Company (Holdings or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Saledetermined in good faith by Holdings) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company Holdings or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s Holdings’ or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company Holdings or any Restricted Subsidiary of Holdings (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assetsassets or Equity Interests pursuant to an agreement that releases or indemnifies Holdings or such Restricted Subsidiary, as the case may be, from further liability;
(Bii) any securities, notes or other obligations or other securities or assets received by the Company Holdings or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Holdings or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company Holdings or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 100.0 million and (by) 3.52.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall each be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b)4.06.
(b) Within 365 days after the Holdings or any Restricted Subsidiary’s receipt of any the Net Cash Proceeds of any Asset Sale, the Company Holdings or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(1i) to repayrepay Indebtedness constituting Senior Obligations (and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem or repurchase to correspondingly reduce commitments with respect thereto),
(ii) to repay Indebtedness constituting Second Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) (provided that (x) to the extent that the terms of Second Lien Obligations other than Subordinated Indebtedness) the Second Lien Note Obligations and other than any capital markets debt securities require that such Second Lien Obligations are repaid with the Net Cash Proceeds of Asset Sales prior to repayment of other Indebtedness, the Issuers shall be entitled to repay such other Second Lien Obligations prior to repaying the Obligations under the Securities and (other than Subordinated Indebtednessy) subject to the foregoing clause (x), if the Issuers or any Note Guarantor shall so reduce Second Lien Obligations, the Issuers will equally and ratably reduce Obligations under the Securities through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of notes);
(2iii) to acquire all make an investment in any one or substantially all more businesses (provided that if such investment is in the form of the assets acquisition of another Related BusinessCapital Stock of a Person, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;
(3) to make a Holdings), assets, or property or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; ;
(iv) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of Holdings), properties or assets that replace the properties and assets that are the subject of such Asset Sale, or
(5v) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); foregoing. provided that the Company Holdings and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause complied with the provisions described in clauses (2), iii) and (3) or (4iv) of this Section 4.10(b), as applicable, paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Company has Issuers have entered into and not abandoned or rejected a binding agreement to consummate any reinvestment acquire the assets or Capital Stock of a Similar Business, make an Investment in Replacement Assets or make a capital expenditure in compliance with the provision described in clause clauses (2), iii) and (3) or (4iv) of this paragraph, and such reinvestment that acquisition, purchase or capital expenditure is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Cash Proceeds, the Company Holdings or any such Restricted Subsidiary of the Issuers may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Cash Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause the immediately preceding paragraph (1), (2), (3), (4) or (5) it being understood that any portion of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Cash Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the “Net aggregate amount of Excess Proceeds Offer”) on a date (exceeds $50.0 million, the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to Issuers shall make an offer to repurchase or all Holders of Securities (and, at the option of the Issuers, to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtednessany other Second Lien Obligations) on a pro rata basis (in proportion an “Asset Sale Offer”) to purchase the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes Securities (plusand such other Second Lien Obligations), if applicable, that is at least $2,000 and an aggregate principal amount or accreted value, as integral multiple of $1,000 that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Excess Proceeds Offer Amount. The at an offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of thereof (or, in the Notes (or event such other Second Lien Obligations were issued with significant original issue discount, 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtednessvalue thereof), plus accrued and unpaid interest thereonand additional interest, if any (or, in respect of such other Second Lien Obligations, such lesser price, if any, as may be provided for by the terms of such Second Lien Obligations), to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.this
Appears in 2 contracts
Samples: Indenture (Gates Global Inc.), Indenture (Gates Engineering & Services FZCO)
Asset Sales. (a) The Company will notIssuer shall not consummate, and will shall not permit any of its Restricted Subsidiaries toto consummate, consummate an Asset Sale unless:
(1) the Company (Issuer or the any of its Restricted Subsidiary, as the case may be) Subsidiaries receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of such Fair Market Value to be determined on the date of the definitive agreement with respect contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the aggregate consideration received by the Issuer and its Restricted Subsidiaries in the Asset Sale by and all other Asset Sales since the Company or such Restricted Subsidiary date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted SubsidiaryIssuer’s most recent consolidated balance sheet) , of the Company Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNote Guarantees) that are assumed by the transferee of any such assets;assets pursuant to a novation agreement that releases the Issuer or such Restricted Subsidiary from further liability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into Designated Non-cash (to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueXxxx Xxxxxx Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cb) since less the Issue Date that amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is at the time outstanding, not to exceed less than the greater of (ax) $300.0 million and (b) 3.55.0% of the Issuer’s Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (y) $275.0 million; and
(DC) any securities, notes or other obligations received by the fair market value Issuer or any Restricted Subsidiary from such transferee that are within 180 days after the Asset Sale (measured as subject to ordinary settlement periods), converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the date such Equity Interests cash or assets are received) of any Equity Interests or assets of the kind referred to Cash Equivalents received in clauses (2) or (4) of Section 4.10(b)that conversion.
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company Issuer or such any of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to the such Net Proceeds from (or enter into a definitive agreement for such Asset Sale:application within such 360-day period, provided that such application occurs within 180 days after the end of such 360-day period):
(1) to repay, prepay, repay Senior Indebtedness of the Issuer or its Restricted Subsidiaries (or to make an offer to repurchase or give a notice to redeem such Indebtedness; provided that such repurchase or repurchase Indebtedness (other than Subordinated redemption closes within 45 days after the end of such 360-day period) with a permanent reduction in availability for any revolving credit Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the properties or assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanyIssuer;
(3) to make a capital expenditureexpenditure in a Permitted Business;
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(5) a in any combination of prepayments and investments permitted by the foregoing applications described in clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such any Net Proceeds, the Company Issuer or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(e)4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, on within five days thereof, the 366th day (as extended pursuant to the provisions in the preceding paragraph) after Issuer will make an Asset Sale or such earlier dateOffer, if anypursuant to Section 3.09, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)of sales of assets to purchase or redeem, from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount and such other pari passu Indebtedness that may be purchased or accreted value, as redeemed out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereoninterest, if any, to the Net date of purchase, subject to the right of Holders of Notes on the relevant record date to receive interest on an interest payment date that is on or prior to the Purchase Date, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding remain after consummation of an Asset Sale Offer, the foregoing, if at any time any non-cash consideration received by the Company Issuer or any Restricted Subsidiary, as the case Subsidiary may be, in connection with use those Excess Proceeds for any Asset Sale is converted into or sold or purpose not 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn into such Asset Sale Offer exceeds the Net amount of Excess Proceeds Offer Amountallocated to the purchase of Notes, then the Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will shall be purchased on a pro rata basis (based on or, in the principal amount case of Global Notes, the Notes and, if applicable, represented thereby will be purchased in accordance with the principal amount or accreted value, Depositary’s prescribed method) (with such adjustments as may be deemed appropriate by the case may be, of any such Pari Passu Indebtedness tendered Issuer so that only Notes will be purchased in an authorized denomination and not withdrawnintegral multiples thereof). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(ge) The Company or In making an Asset Sale Offer, the applicable Restricted Subsidiary, as the case may be, Issuer will comply with the applicable 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 Offerregulations. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Dte Energy Co)
Asset Sales. Holdings and the Borrower will not, nor will they permit any Subsidiary Guarantor to, directly or indirectly, make any Asset Sale, except that the following Asset Sales shall be permitted, provided that as at the time of, and after giving effect to, such Asset Sale the Specified Conditions have been satisfied (other than in the case of Asset Sales described in clause (ii)):
(i) Any Loan Party may sell, lease, assign, convey, transfer or otherwise voluntarily dispose of assets (each a “Disposition”); provided that (a) The Company will notsuch Loan Party, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale the Disposition at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2b) at least 7570% of the consideration received in the Asset Sale Disposition by the Company or such Restricted Subsidiary Loan Party is in the form of cash or Cash Equivalentsand Marketable Securities. For purposes of this provision only (and specifically not for the purposes of the definition clause (i) of “Net Proceeds”)this Section 7.5B and for no other purpose, each of the following shall be deemed to be cash:
(Aa) Cash Equivalents;
(b) any liabilities Indebtedness (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetother than any Subordinated Indebtedness) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Loan Parties that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are is actually assumed by the transferee of any in such assetsDisposition (provided that Loan Party making the Disposition is released from its obligations with respect to such Indebtedness);
(Bc) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary Loan Party from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary recipient within 120 days into cash (or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(Dd) the fair market value (measured as of the date such Equity Interests or assets are received) Fair Market Value of any Equity Interests property or other assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt including Capital Stock of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes Person that shall be a Restricted Subsidiary of the Company;
(3following receipt thereof) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) received that will be are used or useful in a Related Permitted Business; or.
(5ii) a combination Each Loan Party may sell, transfer or otherwise dispose of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)property or assets to another Loan Party; provided that if the Company and its Restricted Subsidiaries will transferor of such property is a Guarantor (a) the transferee thereof must either be deemed to have applied such Net Proceeds pursuant to clause (2), (3) a Guarantor or (4b) of this Section 4.10(b), as applicable, if and to the extent thatsuch transaction constitutes an Investment, within 365 days after such transaction is permitted or not otherwise prohibited under Section 7.2 (other than clause (xv) thereof);
(iii) Each Loan Party may sell, transfer and otherwise dispose of property to the Asset Sale extent that generated (a) such property is exchanged for credit against the Net Proceedspurchase price of similar replacement property or (b) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(iv) Each Loan Party may sell, transfer and otherwise dispose of Investments in Excluded Subsidiaries or in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(v) Each Loan Party may effect any transaction permitted or not otherwise prohibited by Section 7.2 (other than clause (1xv) thereof), (2), (3), (4) 7.3 or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.7.5A;
(dvi) Notwithstanding Each Loan Party may make Permitted Business Asset Sales;
(vii) Each Loan Party may enter into Sale Leasebacks permitted by Section 7.6; and
(viii) Each Loan Party may make Dispositions not otherwise permitted by this Section 7.5B; provided, that the foregoingaggregate Fair Market Value of all assets sold, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold transferred or otherwise disposed of for cash in reliance on this clause (other than interest received with respect to viii) during any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and Fiscal Year shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceexceed $25,000,000.
Appears in 1 contract
Samples: Credit Agreement (Brookfield Residential Properties Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsMarketable Securities. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, 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 Note Guarantee) that are assumed by the transferee of any such assetsassets and as a result of which, the Company or such Restricted Subsidiary is released from further liability;
(B) any securities, notes or notes, other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since less the Issue Date that amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration is at the time outstanding, not to exceed less than the greater of (ax) $300.0 million and (b) 3.55% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), and (y) $15.0 million; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests Capital Stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10(b).
(b) 4.10. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase repay (w) Indebtedness (other than Subordinated Indebtedness) and other Obligations under a Credit Facility, (x) any Indebtedness that was secured by the assets sold in such Asset Sale, (y) other pari passu Indebtedness (provided, that the Company shall also equally and ratably reduce Indebtedness under the Notes by making an offer (in accordance with the procedures set forth below for an Asset Sale) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, the pro rata principal amount of Notes), or (z) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Subordinated Indebtedness)Indebtedness owed to the Company or an Affiliate of the Company;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests Capital Stock of, another Permitted Business; provided, that in the case of another Related Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;; or
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only Section 4.10(a)(2) (and specifically not for the purposes of determining the definition of “Net Proceeds”Proceeds received from the Asset Sale), each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated 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 Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a written 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 any such Restricted Subsidiary from such transferee that are within 180 days are of the receipt thereof converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(C) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10; and
(D) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valuea Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (Cd) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.57.5% of Consolidated Total Net Tangible Assets at the time of receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset SaleProceeds:
(1) to repay, prepay, redeem or repurchase repay Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated under a Credit Facility and, if the Indebtedness repaid is revolving credit Indebtedness), to correspondingly reduce commitments with respect thereto;
(2) to acquire Business Assets or all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsBusiness Assets or Capital Stock, the Related Business Assets will be held by, or the Permitted Business is or becomes becomes, a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;; or
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(5) provided, however that if, during such 365-day period, the Company and/or any of its Restricted Subsidiaries enters into a combination binding written contract with a Person other than an Affiliate of prepayments and investments permitted by the foregoing Company to apply such amount pursuant to clauses (1), (2), ) or (3) above, then such 365-day period shall be extended until the earlier of (a) the date on which such acquisition or expenditure is consummated, and (4); provided that b) the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) 180th day following the expiration of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such aforementioned 365-day period.
(c) Pending the final application of such any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(e)4.10(b) shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million, on within twenty days thereof, the 366th day (as extended pursuant to the provisions in the preceding paragraph) after Company shall make an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not Offer to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all Holders of other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoingdate of purchase, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 and shall be deemed to constitute payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale hereunder Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the Net 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 each Asset Sale Offer, the amount of Excess Proceeds thereof shall be applied in accordance with Section 4.10reset at zero.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 3.10 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of Section 3.09 3.10 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Titan Distribution, Inc)
Asset Sales. (a) The Company will Dutch Co-Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale Sale, unless:
(1i) the Company (Dutch Co-Issuer or the 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 Fair Market Value (measured as determined at the time of the date of the definitive agreement with respect contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2ii) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration therefor received in the Asset Sale by the Company Dutch Co-Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for Equivalents or Replacement Assets; provided, however, that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A1) any liabilities (as shown on the CompanyDutch Co-Issuer’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company Dutch Co-Issuer or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeare otherwise extinguished in connection with the transactions relating to such Asset Sale) that are assumed by the transferee of any such assetsassets or Equity Interests pursuant to an agreement that releases or indemnifies Dutch Co-Issuer or such Restricted Subsidiary, as the case may be, from further liability;
(B2) any securities, notes or other obligations or other securities or assets received by the Company Dutch Co-Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Dutch Co-Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash received or Cash Equivalents received), in that conversion);each case, within 180 days of the receipt thereof; and
(C3) any Designated Noncash Non-cash Consideration received by the Company Dutch Co-Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C3) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 150.0 million and (by) 3.52.25% of Consolidated Total Assets Assets, at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
shall each be deemed to be Cash Equivalents for the purposes of this clause (D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(bii).
(b) Within 365 days after the Dutch Co-Issuer’s or any Restricted Subsidiary’s receipt of any the Net Cash Proceeds of any Asset Sale, the Company Dutch Co-Issuer or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the Net Cash Proceeds from such Asset Sale, at its option:
(1i) to repaypermanently reduce Obligations under the Senior Credit Agreement and, prepayin the case of revolving loans, redeem or repurchase to correspondingly reduce commitments with respect thereto;
(ii) to permanently reduce Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by a Lien (including the Euro Notes), which Lien is permitted by this Indenture and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto;
(iii) to permanently reduce Obligations under (x) other Pari Passu Indebtedness of the Issuers or the Guarantors (provided that if the Issuers or any Guarantor shall so reduce such Obligations under such other Pari Passu Indebtedness, Dutch Co-Issuer shall (A) equally and other ratably reduce Obligations under the Notes as provided in Section 5.1 or through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or (B) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest, if any, the principal amount of Notes that would otherwise be redeemed under clause (A) above) or (y) Indebtedness of a Non-Guarantor Subsidiary, in each case, other than Subordinated IndebtednessIndebtedness owed to Dutch Co-Issuer or another Restricted Subsidiary (and, in each case, correspondingly reduce commitments with respect thereto);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3iv) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a capital expenditure;
(4) to acquire other Person, such acquisition results in such Person becoming a Restricted Subsidiary), assets (other than securities working capital assets), or current assets) that will be property or capital expenditures, in each case used or useful in a Related Similar Business;
(v) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary), properties (other than working capital assets) or assets (other than working capital assets) that replace the businesses, properties and/or assets that are the subject of such Asset Sale; or
(5vi) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)foregoing; provided that the Company Dutch Co-Issuer and its Restricted Subsidiaries will shall be deemed to have applied such Net Proceeds pursuant to complied with the provisions described in clause (2), (3iv) or (4v) of this Section 4.10(b), as applicable, 3.7(b) if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Company Dutch Co-Issuer or such Restricted Subsidiary, as applicable, has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment make an investment in compliance with the provision described in clause clauses (2), iv) and (3) or (4v) of this paragraphSection 3.7(b), and such reinvestment that investment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of any such amount of Net Cash Proceeds, the Company Dutch Co-Issuer or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest or utilize such Net Cash Proceeds in any manner not prohibited by this Indenture. Subject Any amount of Net Cash Proceeds from any Asset Sale that are not invested or applied as provided and within the time period set forth in Section 3.7(b) shall be deemed to constitute “Excess Proceeds” (provided that any amount of proceeds offered to Holders pursuant to Section 4.10(e), on the 366th day (as extended 3.7(b)(iii)(x) or pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as Offer made at any time after the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale shall be deemed to have been applied as set forth in clause (1required and shall not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the Holders), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such . When the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $50.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) the Issuers shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)Indebtedness , from the to all holders of such Pari Passu Indebtedness) , to purchase the maximum principal amount of such Notes and Pari Passu Indebtedness, as appropriate, on a pro rata basis (basis, that may be purchased out of the Excess Proceeds at an offer price, in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) Notes, in cash in an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100100.0% of the principal amount of the Notes thereof (or 100in the event such other Indebtedness was issued with original issue discount, 100.0% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtednessvalue thereof), plus accrued and unpaid interest thereoninterest, if any (or such lesser price, if any, as may be provided by the terms of such other Indebtedness), to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Indenture and the agreement governing such Pari Passu Indebtedness. The Issuers shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $50.0 million by transmitting electronically or disposition shall be deemed by mailing to constitute an Asset Sale hereunder and Holders the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess terms of $200.0 million).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Datethis Indenture, with a copy to the Trustee, and shall comply Trustee or otherwise in accordance with the procedures set forth in Section 3.09of DTC. Upon receiving notice The Issuers may satisfy the foregoing obligations with respect to such Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to the expiration of the application period or by electing to make an Asset Sale Offer with respect to such Net Cash Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that before the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn Excess Proceeds exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)$50.0 million. To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered or otherwise surrendered is less than the Notes (plusExcess Proceeds, if applicable, the Issuers may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness tendered or accreted valueotherwise surrendered by holders thereof exceeds the amount of Excess Proceeds, as the case may be, of any Trustee shall select the Notes (and the Issuers or their agents shall select such Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than be purchased in the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturemanner described below. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net To the extent the Excess Proceeds Offer shall remain open for a period exceed the outstanding aggregate principal amount of 20 Business Days or such longer period as may be the Notes (and, if required by applicable lawthe terms thereof, all Pari Passu Indebtedness), the Issuers need only make an Asset Sale Offer up to the outstanding aggregate principal amount of Notes (and any such Pari Passu Indebtedness), and any additional Excess Proceeds shall not be subject to this Section 3.7 and shall be permitted to be used for any purpose in the Issuers’ discretion.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase purchase of the Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 3.7 by virtue of such compliance.
(e) If more Notes are tendered pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Notes for purchase shall be made in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed (so long as the Trustee knows of such listing) or if such Notes are not listed, on a pro rata basis (with adjustments so that only Notes in denominations of the minimum denomination of $150,000 or integral multiples of $1,000 in excess thereof shall be purchased), by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided, that the selection of Notes for purchase shall not result in a Holder with a principal amount of Notes less than the minimum denomination of $150,000. No Note will be repurchased in part if less than the minimum denomination of such Note would be left outstanding.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, or sent electronically, at least 30 but not more than 60 days before the purchase date to each Holder at such Holder’s registered address or otherwise in accordance with DTC procedures. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or such a Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”)2) only, each of the following shall will be deemed to be cash:
(Aa) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 Note Guarantee) that are assumed or otherwise forgiven or released by the transferee of any such assetsassets (or an Affiliate thereof);
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days are after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion;
(c) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(b);
(Cd) any Designated Noncash Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cd) since the Issue Date that is at the that time outstanding, not to exceed the no greater of (a) $300.0 million and (b) 3.5than 5.0% of the Adjusted Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(De) with respect to any Asset Sale of Oil and Gas Properties sold, leased, conveyed, transferred or otherwise disposed of by the fair market value (measured as Company or a Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the date Company or such Equity Interests Restricted Subsidiary related to the exploration, development, completion or assets are receivedproduction of such property and activities related thereto that the transferee of such property (or an Affiliate thereof) of any Equity Interests or assets of the kind referred agrees to in clauses (2) or (4) of Section 4.10(b)pay.
(b) Within 365 360 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such any Restricted Subsidiary, ) may apply such Net Proceeds at its option, may apply an amount equal option to any combination of the Net Proceeds from such Asset Salefollowing:
(1) to repay, prepaypurchase, redeem repurchase, redeem, defease or repurchase otherwise acquire, retire or terminate (a) Indebtedness and all other Obligations related thereto that are secured by a Lien or (b) Obligations under Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Subordinated Indebtedness) and other Obligations (other than Subordinated IndebtednessIndebtedness owed to the Company or another Restricted Subsidiary);
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Capital Stock of, one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Business such Person is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;expenditures in respect of the Company’s or any Restricted Subsidiary’s Oil and Gas Business; or
(4) to acquire other assets (other than securities or current assetsCapital Stock) that will be are not classified as current assets under GAAP and that are used or useful in a Related the Oil and Gas Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application The requirement of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), clauses (2), (3), ) through (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary deemed to be satisfied if a bona fide binding contract committing to make an offer the investment, acquisition or expenditure referred to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received therein is entered into by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (a Person other than interest received with respect to any an Affiliate of the Company within the time period specified in the preceding paragraph and such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be are subsequently applied in accordance with Section 4.10such contract within six months following the date such agreement is entered into.
(d) The Company (or any Restricted Subsidiary) may expend or invest the Net Proceeds in any manner that is not prohibited hereby, including temporarily reducing revolving credit borrowings.
(e) The Company may defer the Any Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales that are not applied or invested as provided in Section 4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within 30 days thereafter, the Company will make an offer (at which time the entire unutilized Net Proceeds Offer Amountan “Asset Sale Offer”) to all Holders of Notes, and not just all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth herein with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in excess connection therewith) that may be purchased, prepaid or redeemed out of $200.0 million, shall be applied as required pursuant to Section 4.10, and the Excess Proceeds. The offer price in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds any Asset Sale Offer will be sent equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the record date of purchase, prepayment or redemption, subject to the rights of Holders as shown of Notes on the register of Holders within 25 days following relevant record date to receive interest due on the Net Proceeds Offer Trigger Date, with a copy to the Trusteerelevant interest payment date, and shall comply with the procedures set forth will be payable in Section 3.09cash. Upon receiving notice If any Excess Proceeds remain after consummation of the Net Proceeds an Asset Sale Offer, Holders the Company or any Restricted Subsidiary may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange use those Excess Proceeds for cashany purpose not otherwise prohibited hereby. To the extent that If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (plus, if applicableor required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount Trustee will select the Notes and such other pari passu Indebtedness to be purchased, prepaid or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased redeemed on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as the Depositary or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law or applicable stock exchange or depositary requirements), based on the principal amount of the Notes and, if applicable, the principal amount amounts tendered or accreted value, required to be prepaid or redeemed (with such adjustments as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, be deemed appropriate by the Company may use such so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturethereof, will be purchased). Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net The Company may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer shall remain open for a prior to the expiration of the relevant 360-day period or with respect to Excess Proceeds of 20 Business Days $20.0 million or such longer period as may be required by applicable lawless.
(gf) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall not will be deemed not to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(g) The provisions hereof relative to the Company’s obligation to make an offer to repurchase the notes as a result of an Asset Sale may be amended, waived, modified or terminated with the consent of the Holders of a majority in principal amount of the outstanding Notes (including Additional Notes, if any).
(h) All references herein to “Net Proceeds” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Proceeds or Excess Proceeds but not necessarily the actual cash received from the relevant Asset Sale. The Company and its Subsidiaries shall have no obligation to segregate, trace or otherwise identify Net Proceeds or Excess Proceeds (other than the amount thereof), it being agreed that cash is fungible and that the Company’s obligations under this Section 4.10 may be satisfied by the application of funds from other sources.
Appears in 1 contract
Samples: Indenture (Viper Energy Partners LP)
Asset Sales. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests shares of Capital Stock of a Restricted Subsidiary issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) sheet or in the footnotes thereto, 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 Note Guarantee) (i) that are assumed by the transferee of any such assetsassets and for which the Company or such Restricted Subsidiary, as the case may be, have been released or indemnified against further liability or (ii) in respect of which neither the Company nor any Restricted Subsidiary following such Asset Sale has any obligation;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary within 365 days into cash (cash, to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value that, when taken together with all other Designated Noncash Consideration previously received pursuant to this clause (C) since the Issue Date that is at the time and then outstanding, does not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) the greater of $200.0 million or 2.0% of Total Assets; and
(D) the fair market value (measured as of the date such Equity Interests any Investment, stock, asset, property or assets are received) of any Equity Interests or assets capital expenditure of the kind referred to in clauses (2) or (4) of Section 4.10(b4.10(b)(3).
(b) Within 365 days after one year from the later of the date of an Asset Sale or the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to prepay, will comply repay, redeem or purchase (i) Indebtedness and other Obligations that are secured by a Lien or (ii) Indebtedness (other than any Disqualified Capital Stock) and other Obligations of a Non-Guarantor Subsidiary, and, in each case, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to prepay, repay, redeem or purchase Senior Indebtedness of the requirements of Rule 14e-1 under the Exchange Act and Company or 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 provisions of Section 3.09 or this Section 4.10Guarantor; provided, that, the Company shall (y) apply a pro rata portion (determined and as modified based on the provisions set forth below) of such Net Proceeds to redeem or such Restricted Subsidiary shall comply repurchase the Notes (i) as described in Section 3.07 or (ii) through open market purchases at a purchase price not less than 100% of the principal amount thereof, plus accrued but unpaid interest thereon, or (z) make an offer (in accordance with the applicable securities laws procedures set forth below) to all holders to purchase their Notes at a purchase price not less than 100% of the principal amount thereof, plus accrued but unpaid interest thereon (in each case other than Indebtedness or other Obligations owed to the Company or an Affiliate of the Company); or
(3) to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary), to acquire assets or property or to make capital expenditures, in each case (i) used or useful in a Permitted Business or (ii) that replace the properties and regulations assets that are the subject of such Asset Sale; provided, that in the case of Section 4.10(b)(3), entering into and not abandoning or rejecting a binding commitment to make an investment to satisfy Section 4.10(b)(3) above shall be treated as a permitted application of Net Proceeds from the date of such commitment; provided, that (x) such investment is consummated within 545 days after the later of the receipt of such Net Proceeds or the date of such Asset Sale and (y) if such investment is not consummated within the period set forth in subclause (x), or otherwise applied as set forth in Section 4.10(b) (1) or (2), the Net Proceeds not so applied will be deemed to have breached its obligations constitute Excess Proceeds under Section 3.09 or this Section 4.10 by virtue of such compliance4.10(d).
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated 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 Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days are after the Asset Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 US$60.0 million and (b) 3.55.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses (23) or (45) of Section 4.10(b)4.17(b) of this Indenture.
(b) Within 365 days after from the date of receipt of any such Net Proceeds (which time period may be extended for up to 180 days by the entering into either a binding commitment to acquire assets or Capital Stock (in the case of any Asset Saleclause (3) below) or otherwise a binding commitment to apply such Net Proceeds as otherwise contemplated below), the Company Company, or such the applicable Restricted Subsidiary, at its option, may apply an amount equal to the such Net Proceeds from such Asset Saleas follows:
(1) to repaythe extent the Net Proceeds are attributable to an Asset Sale of assets that constitute Collateral, prepayto repay the Notes, redeem any First Lien Debt secured by the Collateral or repurchase any other Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated to which the Lien securing the Notes are contractually subordinated, and, if the Indebtedness repaid is revolving credit Indebtedness), to correspondingly permanently reduce commitments with respect thereto;
(2) to the extent the Net Proceeds are attributable to an Asset Sale of assets that do not constitute Collateral, to repay the Notes or any other secured Indebtedness, and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto and, if the Notes are not then secured by the Collateral, to repay the Notes or any other unsecured Indebtedness;
(3) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(34) to make a capital expenditureexpenditure in respect of a Permitted Business;
(45) to acquire other assets (other than securities or that are not classified as current assets) assets under IFRS and that will be are used or useful in a Related Permitted Business; or
(56) a any combination of prepayments and investments permitted by the foregoing clauses (1) through (5), (2), (3) and (4); provided that . Pending the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) final application of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the any Net Proceeds, the Company has entered into and (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of prohibited by this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day periodIndenture.
(c) Pending Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.17(b) of this Indenture will constitute "Excess Proceeds." When the final application aggregate amount of Excess Proceeds exceeds US$50.0 million, within thirty days of exceeding such Net Proceedsamount, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day shall make an offer (as extended pursuant to the provisions in the preceding paragraph) after an "Asset Sale or such earlier date, if any, as the Board Offer") to all Holders of Directors Notes and all holders of the Company or of such Restricted Subsidiary determines not First Lien Debt secured by Collateral containing provisions similar to apply the Net Proceeds relating to such Asset Sale as those set forth in clause (1)this Indenture with respect to offers to purchase, (2), (3), (4) prepay or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase, prepay or redeem the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes and such First Lien Debt secured by Collateral (plusplus all accrued interest on the Indebtedness and the amount of all fees and expenses, if applicableincluding premiums, an aggregate principal amount incurred in connection therewith) that may be purchased, prepaid or accreted value, as redeemed out of the case may be, of Pari Passu IndebtednessExcess Proceeds.
(d) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereoninterest, if any, to, but not including, the date of purchase, prepayment or redemption, subject to the Net Proceeds Offer rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, and will be payable 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 Proceeds thereof shall be applied in accordance with Section 4.10cash.
(e) The If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million)otherwise prohibited by this Indenture.
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes and First Lien Debt secured by Collateral tendered in (plus, if applicableor required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustees shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (basis, based on the principal amount of the Notes and, if applicable, the principal amount amounts tendered or accreted value, required to be prepaid or redeemed (with such adjustments as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, be deemed appropriate by the Company may use such so that only Notes in denominations of US$2,000, or an integral multiple of US$1,000 in excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturethereof, will be purchased). Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Taseko Mines LTD)
Asset Sales. (a) The Company will Blount International shall not, and will shall not permit any perxxx xxy of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company Blount International (or the Restricted SubsidiarySubsidiary xx Xxxunt International, as the case may be) receives consideration xxxxxxeration at the time of such Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ; (ii) the fair market value is determined by the Company’s Board of DirectorsDirectors of Blount International and evidenced by a resolution xx xhat Board of Directors set forth in an Officers' Certificate delivered to the Trustee in the event such Asset Sale involves aggregate consideration in excess of $20,000,000 million; and
and (2iii) at least 75% of the consideration therefor received in by Blount International or the Asset Sale by the Company or such Restricted Subsidiary xx Xxount International is in the form of cash or Cash EquivalentsXxxxxxlents or Marketable Securities. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
: (A) any liabilities of Blount International (or the Restricted Subsidiary xx Xxxunt International, as the case may be), as shown on the Company’s or such Restricted Subsidiary’s xx xts most recent balance sheet) of the Company or any Restricted Subsidiary sheet (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;
the assets pursuant to a customary novation agreement that releases the transferor from further liability; (B) any securities, notes or other obligations received by from the Company or any such Restricted Subsidiary from such transferee that are within 180 90 days are converted by Blount International or the Company or such Restricted Subsidiary Subsixxxxx of Blount International into cash (to the extent of the cash received in that conversionthxx xxsh);
; (C) any Designated Noncash Consideration received by the Company Blount International or any of its Restricted Subsidiary Subsidxxxxxx in such the Asset Sale having an Sale; provided that the aggregate fair market valuevalue (as determined above) of the Designated Noncash Consideration, taken together with the fair market value at the time of receipt of all other Designated Noncash Consideration received pursuant to this clause (C) since less the Issue Date that amount of Net Proceeds previously realized in cash from prior Designated Noncash Consideration is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5less than 10% of Consolidated Total Assets at the time of the receipt of such the Designated Noncash Consideration, Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
and (D) the fair market value (measured as Additional Assets received in an exchange of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) transaction. Within 365 days 18 calendar months after the receipt by Blount International or a Restricted Subsidiary of Xxxxxx International of any Net Proceeds of any Asset Salefrom an Axxxx Xale, the Company or such Restricted Subsidiary, at its option, Blount International may apply an amount equal to the those Net Proceeds from such Asset Sale:
at xxx xption, (1i) to repayrepay Senior Debt, prepayincluding Indebtedness under the New Credit Facilities and the 1998 Indenture, redeem or repurchase Indebtedness and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce the lenders' commitments with respect thereto; (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2ii) to acquire all or substantially all of the assets or a majority of the Voting Stock of another Related company that is engaged in a Permitted Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
; (3iii) to make a capital expenditure;
expenditure in a Permitted Business; or (4iv) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)Additional Assets; provided that the Company and its Restricted Subsidiaries Blount International will be deemed to have applied such Net Proceeds pursuant to clause complied with this clxxxx (2), (3iv) or (4) of this Section 4.10(b), as applicable, if and to the extent thatif, within 365 days after 18 calendar months of the Asset Sale that generated the Net ProceedsSale, the Company Blount International has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment an agreemexx xxxering the acquisition which is thereafter completed within 180 days after the end date of such 365-day period.
(c) the agreement. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary Blount International may temporarily reduce revolxxxx xredit borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph shall be deemed to constitute "Excess Proceeds". When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $10,000,000, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (andof Notes, if required by the terms as well as all holders of any other Indebtedness of the Company ranking that is pari passu with the Notes in right and that has the benefit of payment and which has similar provisions requiring the Company either to make a similar offer (an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from "Asset Sales (the “Pari Passu Indebtedness”Sale Offer"), from to purchase the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Offer shall will be equal to 100% of the principal amount of Notes and other Indebtedness to be purchased or the Notes (or 100% of the principal lesser amount or accreted value, as the case may be, of required under agreements governing such Pari Passu other Indebtedness), plus accrued and unpaid interest thereonand Additional Interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by date of purchase. Blount International or the Company or may use any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed Excexx Xxxceeds remaining after consummation 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Company shall select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu and other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indentureso tendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 under the Exchange Act and any all other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase each purchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that If the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall by so doing will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance4.10.
Appears in 1 contract
Samples: Indenture (Blount International Inc)
Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Issuer or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalentsa combination thereof. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will 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 Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets and as a result of which the Issuer or such Restricted Subsidiary is released from further liability;
(B) any securities, notes or notes, other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash (or Cash Equivalents within 270 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date Sale; provided that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Non-cash Consideration, the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with all previously received Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) less the amount of Net Proceeds previously realized in cash from the sale of previously received Designated Non-cash Consideration is less than the greater of (x) $375 million and (y) 7.5% of Total Tangible Assets; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests Capital Stock or assets of the kind referred to in clauses clause (2) or (4) of the next paragraph of this Section 4.10(b).
(b) 4.10. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company Issuer (or such the applicable Restricted Subsidiary, as the case may be) may:
(a) apply such Net Proceeds, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay (w) any secured Indebtedness of the Issuer or any Guarantor, prepay(x) any Indebtedness that was secured by the assets sold in such Asset Sale, redeem or repurchase (y) other pari passu Indebtedness (provided that the Issuer shall also equally and ratably reduce Indebtedness under the Notes by making an offer, in accordance with the procedures set forth below for an Asset Sale, to all Holders to purchase the pro rata principal amount of Notes, in each case at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the repurchase date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date)), or (z) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)Indebtedness owed to the Issuer or an Affiliate of the Issuer;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;; or
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(5b) enter into a combination of prepayments and investments permitted by binding commitment to apply the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause clauses (2a)(2), (3) or (4) of this Section 4.10(b)above, as applicable, if and to the extent that, within 365 days after the Asset Sale provided that generated the Net Proceeds, the Company has entered into and not abandoned such acquisition or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment expenditure is thereafter completed consummated within 180 days after following the end expiration of such 365-the aforementioned 365 day period.
(c) . Pending the final application of such any Net Proceeds, the Company or any Restricted Subsidiary Issuer may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) second paragraph of this Section 4.10 will constitute “Excess Proceeds.” Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $250.0 million, the Issuer will make an Asset Sale or such earlier date, if any, as the Board Offer to Holders of Directors all Notes and all holders of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonto, if anybut excluding, to the Net date of purchase and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the purchase price for the Notes and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds other pari passu Indebtedness tendered into such Asset Sale Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just exceeds the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicableExcess Proceeds, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturebasis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Walter Energy, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
(1i) the Company (or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (evidenced by a Board Resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee);
(ii) if the Company or such Restricted Subsidiary, as approved in good faith the case may be, receives consideration at the time of such Asset Sale greater than $7.5 million, the fair market value of the assets sold or otherwise disposed of is determined by the Company’s Parent's Board of DirectorsDirectors (such determination to be evidenced by a Board Resolution of Parent's Board of Directors set forth in an Officers' Certificate delivered to the Trustee) or in a written opinion issued by an independent appraisal firm or financial advisor of national standing; and
(2iii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalents. Replacement Assets.
(b) For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)Section 4.12(a) only, each of the following shall will be deemed to be cash:
(Ai) any liabilities (of the Company or any of its Restricted Subsidiaries, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Restricted Subsidiary's Subsidiary Guarantee) that are assumed by the transferee of any such assets;assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(Ciii) any Designated Noncash Non-Cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such the Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)Sale.
(bc) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such and its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to the those Net Proceeds from such Asset Saleat their option:
(1i) to repay, prepay, redeem repay the Company's or repurchase any Restricted Subsidiary's Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2ii) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the Company;
Voting Stock of, another Permitted Business (3) or enter into a definitive agreement committing the Company or one of its Restricted Subsidiaries to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination such purchase within six months of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)date of such agreement; provided that if such agreement is terminated, the Company and its or such Restricted Subsidiaries will be deemed to have applied Subsidiary may invest such Net Proceeds pursuant prior to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period., or if later, prior to the end of the six-month period referred to in this clause (ii)); or
(ciii) Pending the final application of such Net Proceedsto acquire other long-term assets or to make a capital expenditure, in each case, that are used or useful in a Permitted Business (or enter into a definitive agreement committing the Company or any one of its Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities Subsidiaries to make such acquisition or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors expenditure within six months of the Company or date of such Restricted Subsidiary determines not to apply the Net Proceeds relating to agreement; provided that if such Asset Sale as set forth in clause (1)agreement is terminated, (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary may invest such Net Proceeds prior to the end of such 365-day period, or if later, prior to the end of the six-month period referred to in this clause (iii)). Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested within such 365-day period as provided in Section 4.12(c) will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, not later than 30 days after such date, the Company shall make an Asset Sale Offer (which offer may be made at any time within such 365 or 30-day periods) to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (andof Notes and Additional Notes, if required by the terms any, and all holders of any other Indebtedness of the Company ranking that is pari passu with the Notes in right of payment and which has containing provisions similar provisions requiring the Company either to make an offer those set forth herein with respect to repurchase offers to purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)of sales of assets to purchase, from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plusand Additional Notes, if applicableany, an aggregate principal and such other pari passu Indebtedness equal in amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Excess Proceeds remaining after an asset sale offer required to be commenced prior to the Asset Sale Offer Amount(and not just the amount thereof that exceeds $15.0 million). The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), thereof plus accrued and unpaid interest thereonand Additional Interest, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may bedate of purchase, in connection accordance 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)the procedures set forth herein, then such conversion or disposition and shall be deemed to constitute payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale hereunder Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Additional Notes, if any, and other pari passu Indebtedness surrendered by holders thereof exceeds the Net amount of Excess Proceeds thereof remaining after an asset sale offer required to be commenced prior to the Asset Sale Offer, the Trustee shall select the Notes and Additional Notes, if any, and other pari passu Indebtedness to be applied purchased as described in accordance with Section 4.10Article 3 hereof. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.12 by virtue of such complianceconflict.
Appears in 1 contract
Samples: Indenture (Villa Pines Care LLC)
Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale (including any MLP Asset Transfer, MLP Equity Transfer or GP Equity Transfer) unless:
(1) the Company (Issuer or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash cash, Cash Equivalents or Cash Equivalents. For a combination thereof; provided that for purposes of this provision only clause (and specifically not 2) but for the purposes of the definition of “Net Proceeds”)no other purpose, each of the following shall will be deemed to be cash:
(A) any liabilities (as shown on Indebtedness of the Company’s Issuer 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 Note Guarantee) that are assumed by the transferee of any such assetsassets and as a result of which the Issuer or such Restricted Subsidiary is released from further liability in connection with such Indebtedness;
(B) any securities, notes or notes, other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days after the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date Sale; provided that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Non-cash Consideration, the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with all previously received Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) less the amount of Net Proceeds previously realized in cash from the sale of previously received Designated Non-cash Consideration is less than the greater of (x) $50.0 million and (y) 3.0% of Total Tangible Assets; and
(D) the fair market value (measured as Fair Market Value of any Additional Assets received by the Issuer or such Restricted Subsidiary; and provided, further, that in the case of an MLP Asset Transfer, in lieu of the date foregoing requirements of this clause (2), the Issuer, at its election, may meet the following requirements:
(i) after such Equity Interests MLP Asset Transfer and as a result thereof, (x) the Issuer and its Restricted Subsidiaries shall have received an amount of cash and Designated Non-cash Consideration permitted by clause (c) above attributable to such MLP Asset Transfer (as a result of (i) the receipt of cash proceeds and Designated Non-cash Consideration as all or a portion of the consideration for such MLP Asset Transfer or (ii) the repayment of intercompany indebtedness owed by a Subsidiary of the Issuer, transferred or assumed as part of such MLP Asset Transfer) at least equal to (A) 50% of the Fair Market Value of the assets are receivedand property transferred or (B) in the case of a transfer of any Equity Interests or assets of a Person, 50% of the kind referred Fair Market Value of such Person at the time of such MLP Asset Transfer (it being understood that, in the case of a transfer of less than all of the Equity Interests of a Person, the Fair Market Value of such Person shall be determined at the time of the first MLP Asset Transfer constituting part of such MLP Asset Transfer (as if all the Equity Interests in such Person were transferred at the time of such first MLP Asset Transfer, and the cash requirement set forth in this clause shall be satisfied on that basis in connection with such first MLP Asset Transfer) and there shall be no such additional cash attributable to such MLP Asset Transfer required for any subsequent transfer of Equity Interests of such Person constituting part of the MLP Asset Transfer) (in each case of the foregoing clauses (2A) and (B), assuming such assets or Person, as applicable, operates as a going concern), with the balance of the consideration received by the Issuer and its Restricted Subsidiaries for such MLP Asset Transfer consisting solely of Equity Interests in the applicable MLP and (4y) immediately after giving effect to such MLP Asset Transfer on a pro forma basis, the Issuer could incur $1.00 of additional Indebtedness under Section 4.10(b4.09(a).; and
(ii) no Default shall have occurred and be continuing or would occur as a consequence of such MLP Asset Transfer. For purposes of calculating the Fair Market Value of (a) any Person, (b) any assets or property transferred to any Person and (c) any Equity Interests in a Person with respect to any MLP Asset Transfer, any Indebtedness that is owed by such Person to the Issuer or the Restricted Subsidiary that is the transferor shall be disregarded and shall not be reflected in such calculation to reduce the Fair Market Value of such Person or such assets or property or Equity Interests in such Person, as the case may be. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company Issuer or such Restricted SubsidiarySubsidiary may apply such Net Proceeds, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1A) to repay, prepay, redeem or repurchase repay Senior Indebtedness (and to correspondingly reduce commitments with respect thereto) and Indebtedness of the applicable Restricted Subsidiary of the Issuer, other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)Indebtedness owed to the Issuer or another Restricted Subsidiary;
(2B) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanyIssuer; provided that the Notes Collateral Agent has or is immediately granted a perfected first priority security interest in such assets or Capital Stock (other than Excluded Property);
(3C) to make capital expenditures with respect to a capital expenditure;Permitted Business; or
(4D) to acquire other assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; or
(5) a combination . Notwithstanding anything above to the contrary, in the case of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that ) above, a binding commitment entered into within such 365-day period shall be treated as a permitted application of the Company and its Restricted Subsidiaries will be deemed to have applied Net Proceeds so long as such Net Proceeds pursuant shall be applied to clause satisfy such commitment on or before the date that is the later of (2), (3a) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the receipt of such Net Proceeds, the Company has entered into Proceeds and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3b) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end date of such 365-day period.
(c) commitment. Pending the final application of such any Net ProceedsProceeds of an Asset Sale, the Company or any Restricted Subsidiary Issuer may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant Notwithstanding anything to the provisions contrary contained in the foregoing, the Initial Oxford Dropdown will be permitted under this covenant. All of the Net Proceeds received from any Recovery Event in respect of First-Priority Collateral may be invested by the Issuer or a Subsidiary Guarantor in Additional Assets constituting First-Priority Collateral (which may include performance of a restoration of the affected Collateral) within 365 days after the date of the receipt of any Net Proceeds from such Recovery Event, which Additional Assets are thereupon with their acquisition added to the First-Priority Collateral securing the Notes; provided that a binding commitment entered into with such 365-day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment on or before the date that is the later of (a) 365 days after receipt of such Net Proceeds and (b) 180 days after the date of such commitment; provided further that Additional Assets shall not include any Excluded Property or the ICTC Excluded Collateral. Any Net Proceeds from Asset Sales or Recovery Events that are not applied or invested as provided in the immediately preceding paragraph) three paragraphs of this Section 4.10 will constitute “Excess Proceeds.” Within 30 days after the date that the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuer will make an Asset Sale or such earlier dateOffer to all holders of Notes, if any, as the Board and all holders of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking that is pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)) 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, from to purchase the holders maximum principal amount of Notes and such other Pari Passu Indebtedness) Indebtedness (on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case basis) that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price of any Asset Sale Offer will be in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of the Notes (tendered or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)Indebtedness to be repaid, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may bedate of purchase, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)this Indenture. To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and other Pari Passu Indebtedness) Indebtedness so validly tendered and not properly withdrawn pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company Issuer may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any purposes, subject to the other purpose not prohibited by covenants contained in this Indenture. If the aggregate principal amount of Notes surrendered by holders of the Notes and Pari Passu Indebtedness tendered pursuant to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and Pari Passu Indebtedness to be purchased shall be repaid on a pro rata basis. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (WESTMORELAND COAL Co)
Asset Sales. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale Sale, unless:
(1) the Company (Borrower or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board of Directors; Directors of the Borrower) of the assets sold or otherwise disposed of and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the Company’s Borrower’s, or such Restricted Subsidiary’s ’s, most recent balance sheetsheet or in the footnotes thereto) of the Company Borrower or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) Loans, that are assumed by the transferee of any such assets;assets and for which the Borrower and all Restricted Subsidiaries have been validly released by all creditors in writing,
(B) any securities, notes or other obligations securities received by the Company Borrower or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Borrower or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the closing of such Asset Sale and
(C) any Designated Noncash Non-cash Consideration received by the Company Borrower or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5an amount equal to 7.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as , shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 455 days after the Borrower’s or any Restricted Subsidiary’s receipt of any the Net Proceeds of any Asset SaleSale (or Event of Loss Proceeds), the Company Borrower or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:Sale (together with any Event of Loss Proceeds required to be applied as provided in Section 10.2)
(1) to repay, prepay, redeem or repurchase permanently reduce:
(A) Obligations under Pari Passu Indebtedness (other than Subordinated Indebtedness) Disqualified Stock), and other Obligations to correspondingly reduce commitments with respect thereto (other than Subordinated Indebtedness);
(2) Obligations owed to acquire all the Borrower or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets Borrower), provided that if the Borrower shall so reduce Obligations under any Pari Passu Indebtedness (other than securities or current assets) that will be used or useful in Obligations under any Pari Passu Indebtedness secured by a Related Business; or
(5) a combination Lien on the assets of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company Borrower or any Restricted Subsidiary may temporarily Subsidiary), it shall equally and ratably reduce borrowings Obligations under the Credit Facilities or any other revolving credit facilityLoans if the Loans are then prepayable or, if anythe Loans may not then be prepaid, or otherwise invest such Net Proceeds the Borrower shall make an offer (in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on accordance with the 366th day (as extended pursuant to the provisions in the preceding paragraph) after procedures set forth herein for an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not Offer) to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer all Lenders to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to their Loans at 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus the amount of accrued and but unpaid interest thereoninterest, if any, on the amount of Loans that would otherwise be prepaid, or
(B) Indebtedness of a Restricted Subsidiary which is not a Guarantor, other than Indebtedness owed to the Borrower or another Restricted Subsidiary (but only to the extent such Net Proceeds Offer Payment Date.from such Asset Sale or Event of Loss Proceeds are from an Asset Sale of or an Event of Loss affecting such Restricted Subsidiary which is not a Guarantor),
(d2) Notwithstanding to an investment in (A) any one or more businesses, provided that such investment in any business is in the foregoing, if at any time any non-cash consideration received by form of the Company acquisition of Capital Stock and results in the Borrower or any a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B) capital expenditures or (C) acquisitions of other assets, in connection with any Asset Sale is converted into or sold or otherwise disposed each of for cash (other than interest received with respect to any such non-cash considerationA), then such conversion (B) and (C), used or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied useful in accordance with Section 4.10.a Similar Business, or
(e3) The Company may defer the Net Proceeds Offer until there is to an aggregate unutilized Net Proceeds Offer Amount equal to or investment in excess of $200.0 million resulting from (A) any one or more Asset Sales (at which time businesses, provided that such investment in any business is in the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice form of the Net Proceeds Offer, Holders may elect to tender their Notes acquisition of Capital Stock and results in whole the Borrower or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with owning an amount of the requirements Capital Stock of Rule 14e-1 under such business such that it constitutes a Restricted Subsidiary, (B) properties or (C) other assets that, in each of (A), (B) and (C) replace the Exchange Act businesses, properties and any other securities laws assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and regulations thereunder to (3) above, a binding commitment shall be treated as a permitted application of the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To from the extent that date of such commitment so long as the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company Borrower or such Restricted Subsidiary shall comply enters into such commitment with the applicable securities laws and regulations and shall not good faith expectation that such Net Proceeds will be deemed applied to have breached its obligations under Section 3.09 satisfy such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later canceled or this Section 4.10 by virtue terminated for any reason before such Net Proceeds are so applied, the Borrower or such Restricted Subsidiary enters into another Acceptable Commitment within nine months of such compliancecancellation or termination.
Appears in 1 contract
Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (Issuer or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or issued, sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2b) at least 75% of the consideration therefor received in the Asset Sale by the Company Issuer or such Restricted Subsidiary is in the form of cash or Cash EquivalentsEquivalents and is received at the time of such Asset Sale. For purposes of this provision only clause (and specifically not for the purposes b) of the definition of “Net Proceeds”)preceding paragraph, each of the following shall be deemed to be cash:
(Aa) the amount of any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by another Person and for which the transferee of any such assetsIssuer and its Restricted Subsidiaries are released from further liability;
(Bb) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such the applicable transferee that within 180 days are promptly (subject to ordinary settlement periods) converted by the Company Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
(Cc) the Fair Market Value of any Additional Assets received; and
(d) any Designated Noncash Non-Cash Consideration received by the Company or any Issuer and its Restricted Subsidiary Subsidiaries in such an Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (C) since the Issue Date Section 4.13 that is at the time outstanding, outstanding not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) 25.0 million. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or Issuer may apply such Restricted Subsidiary, Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repayrepay Secured Indebtedness and, prepayif the Secured Indebtedness repaid is revolving credit Indebtedness, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)to permanently reduce a corresponding amount of commitments with respect thereto;
(2) to acquire all invest in or substantially all commit to invest in Additional Assets (including by means of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes an investment in Additional Assets by a Restricted Subsidiary of with Net Proceeds received by the Company;Company or another Restricted Subsidiary); and/or
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds redeem Notes pursuant to Section 3.07. In the case of clause (2)) above, (3) or (4) a binding commitment shall be treated as a permitted application of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, Proceeds from the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end date of such 365commitment until the 18-day period.
(c) month anniversary of the date of the receipt of such Net Proceeds. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary Issuer may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by in violation of this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph will constitute “Excess Proceeds.” When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $30.0 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to Issuer will make an offer to purchase to
(the “Net Proceeds Offer”e) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders of Notes; and
(and, if required by the terms f) all holders of any other Indebtedness of the Company ranking that ranks pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales of sales of assets (the “Pari Passu IndebtednessDebt”), from in each case, to purchase (an “Asset Sale Offer”) the holders maximum principal amount of Notes or Notes and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted valueDebt, as the case may be, that may be purchased with the Excess Proceeds (the “Asset Sale Offer Amount”). The offer price in any Asset Sale Offer will be equal to (i) 100% of the principal amount of Notes purchased or (ii) 100% of the principal amount of Notes purchased and any 100% of the principal amount (or accreted value) of such Pari Passu Indebtedness) an Debt purchased, in each case, plus accrued and unpaid interest, if any, to the date of purchase (the “Asset Sale Payment”), and will be payable in U.S. Legal Tender. If the aggregate principal amount of Notes and such Pari Passu Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee (plus, if applicable, an aggregate principal amount or accreted valuetrustees) shall select the Notes and such Pari Passu Debt, as the case may be, to be purchased on a pro rata basis. Upon completion of Pari Passu Indebtedness) equal to each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonreset at zero. Accordingly, if anyany Excess Proceeds remain after consummation of an Asset Sale Offer, to the Net Issuer may use such Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at for any time purpose not in violation of this Indenture. When any non-cash consideration received by the Company Issuer or any of its Restricted Subsidiary, as the case may be, Subsidiaries 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 or Cash Equivalents, such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall Cash Equivalents must be applied in accordance with this Section 4.10.4.13. Upon the commencement of an Asset Sale Offer, the Issuer shall send, by first-class mail, a notice to the Trustee and to each Holder at its registered address. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(e1) The Company may defer that the Net Proceeds Asset Sale Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal being made pursuant to or in excess of $200.0 million resulting from one or more this Section 4.13;
(2) the Asset Sales (at which time the entire unutilized Net Proceeds Sale Offer Amount, the Asset Sale Payment and not just the amount in excess of $200.0 million, date on which Notes tendered and accepted for payment shall be applied as required purchased, which date shall be at least 15 days and no later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”);
(3) that any Notes not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to Section 4.10, and in which case the Net Proceeds Asset Sale Offer Trigger Date shall be deemed cease to be accrue interest after the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).Asset Sale Payment Date;
(f5) Each Net Proceeds Offer will be sent that Holders electing to have a Note purchased pursuant to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender have only a portion of such Note purchased;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or the Paying Agent at the address specified in the notice at least three Business Days before the Asset Sale Payment Date;
(7) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than on the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in whole or in part in minimum denominations of $2,000 2,000, or integral multiples of $1,000 in excess thereof thereof, shall be purchased); and
(9) that Holders the Notes of which were purchased only in exchange for cashpart shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). To On the Asset Sale Payment Date, the Issuer shall, to the extent that lawful: (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer; (2) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Asset Sale Payment in respect of all Notes or portions thereof so tendered; and (3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being repurchased by the Issuer. The Issuer shall publicly announce the results of the Asset Sale Offer on the Asset Sale Payment Date. The Paying Agent shall promptly mail to each Holder of Notes so tendered the Asset Sale Payment for such Notes and the Trustee shall promptly authenticate pursuant to an authentication order and mail (plusor cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unrepurchased portion of the Notes surrendered, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will any; provided that each such new Note shall be purchased on in a pro rata basis (based on the principal amount of the Notes and$2,000 or an integral multiple of $1,000 in excess thereof. However, if applicablethe Asset Sale Payment Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the principal amount or accreted valuePerson in the name of which a Note is registered at the close of business on such Record Date, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent no additional interest shall be payable to Holders that the aggregate amount of the tender Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this IndentureAsset Sale Offer. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture relating to an Asset Sale Offer, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall Issuer will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 Indenture by virtue of complying with such compliancelaws or regulations.
Appears in 1 contract
Samples: Indenture (PGT Innovations, Inc.)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries toto consummate, consummate directly or indirectly, an Asset Sale Sale, unless:
(1) the Company (Issuer or the 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 (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleIssuer) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company Issuer or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Notes or any Subsidiary Guarantee) that are owed to the Issuer or an Affiliate of the Issuer, that are assumed by the transferee of any such assets;assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all applicable creditors in writing,
(B) any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);received) within 180 days following the closing of such Asset Sale, and
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as , shall be deemed to be cash for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds of any Asset Sale, the Company Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:,
(1) to repaypermanently reduce:
(A) Obligations under Senior Indebtedness which is Secured Indebtedness permitted by this Indenture, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness)to correspondingly reduce commitments with respect thereto;
(2B) Obligations under other Senior Indebtedness (and to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4correspondingly reduce commitments with respect thereto); provided that the Company Issuer shall equally and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause ratably reduce Obligations under the Senior Notes as provided under Section 3.07 hereof, through open-market purchases (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned such purchases are at or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to above 100% of the principal amount of thereof) or otherwise by making an offer (in accordance with the procedures set forth below under this Section 4.10) to all Holders to purchase their Senior Notes (or at 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)thereof, plus the amount of accrued and but unpaid interest thereoninterest, if any, to the Net Proceeds Offer Payment Date.;
(dC) Notwithstanding Obligations under the foregoingExisting Notes which have a final maturity date (as in effect on the Closing Date) on or prior to October 15, if 2017, provided that, at any the time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amountof, and not just the amount in excess of $200.0 millionafter giving effect to, shall be applied as required pursuant to Section 4.10such repurchase, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to redemption or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Datedefeasance, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amountused to repurchase, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes redeem or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 defease Existing Notes pursuant to a Net Proceeds Offer. To this subclause (C) following the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and Closing Date shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue exceed 3.5% of Total Assets at such compliance.time; or
Appears in 1 contract
Samples: Indenture (Texas Competitive Electric Holdings CO LLC)
Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company Issuer or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash Equivalentsa combination thereof. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will 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 Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets and as a result of which the Issuer or such Restricted Subsidiary is released from further liability;
(B) any securities, notes or notes, other obligations or assets received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash (or Cash Equivalents within 270 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date Sale; provided that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Non-cash Consideration, the aggregate Fair Market Value of such Designated Non-cash Consideration, taken together with all previously received Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) less the amount of Net Proceeds previously realized in cash from the sale of previously received Designated Non-cash Consideration is less than the greater of (x) $375 million and (y) 7.5% of Total Tangible Assets; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests Capital Stock or assets of the kind referred to in clauses clause (2A)(iii) or (4A)(v) of the next paragraph of this Section 4.10(b).
(b) 4.10. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
Issuer (1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds, at its option:
(A) to (i) repay any Indebtedness of the Issuer or any Guarantor constituting First-Lien Obligations, other than Indebtedness owed to the Issuer or an Affiliate of the Issuer, (ii) repay any Indebtedness of the Issuer or any Guarantor constituting Second-Lien Obligations (provided that if the Issuer or any Restricted Subsidiary shall so repay Second-Lien Obligations, the Issuer will equally and ratably reduce Indebtedness under the Notes through open market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer, in accordance with the procedures set forth below, to all Holders to purchase the pro rata principal amount of Notes, in each case at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the repurchase date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date)), (iii) acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business; provided that the Collateral Agent has or is immediately granted a perfected second priority security interest in such assets or Capital Stock, (iv) make a capital expenditure with respect to Collateral or (v) acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(B) enter into a binding commitment to apply the Net Proceeds pursuant to clauses (A)(iii) or (A)(v) above, provided that such acquisition or expenditure is consummated within 180 days following the expiration of the aforementioned 365 day period. Pending the final application of any Net Proceeds, the Issuer or the applicable Restricted Subsidiary that consummated the Asset Sale may temporarily reduce revolving credit borrowings or otherwise invest the 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 second paragraph of this Section 4.10 will constitute “Excess Proceeds.” Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $250.0 million, the Issuer will make an Asset Sale Offer to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the purchase price for the Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis or in accordance with the applicable procedures of the Depositary, subject to adjustments so no Note in an unauthorized denomination remains outstanding after such purchase. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Walter Energy, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination of both. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”Section 4.10(a)(ii), 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 liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note Guarantee and liabilities to the extent owed to the Company or any Subsidiary Guaranteeof the Company) that are assumed by the transferee of any such assetsassets or Equity Interests pursuant to a written assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability therefor;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash Cash Equivalents or Replacement Assets within 180 days of the receipt thereof (to the extent of the cash Cash Equivalents or Replacement Assets received in that conversion);; and
(C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) 1.5% of Total Assets or (y) $300.0 100.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt by the Company or any of its Restricted Subsidiaries of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, Subsidiary may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1i) to repay, prepay, redeem repay (x) Indebtedness secured by assets of the Company or repurchase Indebtedness its Restricted Subsidiaries (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all the extent of the value of the assets securing such Indebtedness), (y) Obligations under the Credit Agreement or (z) Indebtedness of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
Company that is not a Guarantor (3) to make a capital expenditure;
(4) to acquire other the extent of the value of the assets (other than securities or current assets) that will be used or useful in a Related Businessof such Restricted Subsidiary); or
(5ii) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) purchase Replacement Assets. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on .
(c) On the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a each such date being referred as an “Net Excess Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have that has not been applied on or before such Net the Excess Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of pursuant to Section 4.10(b) (each a “Net Proceeds Offer AmountExcess Proceeds”) shall be applied by the Company or such Restricted Subsidiary Issuers to make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of any Notes and all holders of other Indebtedness of the Company ranking that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase or to otherwise repurchase, redeem or repay such Indebtedness purchase with the proceeds from Asset Sales (of sales of assets, to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as and such other pari passu Indebtedness that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of and such Pari Passu Indebtedness), other pari passu Indebtedness plus accrued and unpaid interest thereoninterest, if any, to the Net Proceeds Offer Payment Datedate of purchase, and shall be payable in cash.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company Issuers may defer the Net Proceeds Asset Sale Offer until there is an are aggregate unutilized Net Excess Proceeds Offer Amount equal to or in excess of $200.0 30.0 million resulting from one or more Asset Sales (Sales, at which time the entire unutilized Net amount of Excess Proceeds Offer Amount, and (not just only the amount in excess of $200.0 30.0 million, ) shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 provided in Section 3.094.10(c). Upon receiving notice If any Excess Proceeds remain after consummation of the Net Proceeds an Asset Sale Offer, Holders the Company and its Restricted Subsidiaries may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange use such Excess Proceeds for cashany purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes (plus, if applicableand such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will shall be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net Excess Proceeds Offer Amount subject to such Asset Sale shall no longer be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may deemed to be required by applicable lawExcess Proceeds.
(ge) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Windstream Services, LLC)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be) Subsidiary receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of such Fair Market Value to be determined on the date of the definitive contractual agreement with respect to such Asset SaleSale by the parties thereto) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the aggregate consideration received in the from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, by the Company or such any Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsAdditional Assets, or any combination thereof. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will 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 of the Company (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 assetsassets and as a result of which the Company or such Restricted Subsidiary is released from further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since less the Issue Date that amount of Net Proceeds previously realized in cash from prior Designated Non-cash Consideration, is at the time outstanding, not to exceed less than the greater of (ax) $300.0 million and (b) 3.53.0% of the Company’s Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (y) $120.0 million; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests Capital Stock or assets of the kind referred to in clauses clause (2C), (E) or (4F) of Section 4.10(b4.10(b)(1).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such any Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset SaleSubsidiary may:
(1) apply such Net Proceeds, at its option:
(A) in the case of any Net Proceeds received from Asset Sales of Collateral, to repay, prepayredeem, retire, defease, replace, refinance or repurchase any Priority Lien Debt, provided that if the Company or any of its Restricted Subsidiaries repays, redeems or repurchases any such Priority Lien Debt pursuant to this clause (1) other than the Notes, the Company or such Restricted Subsidiary must equally and ratably redeem or repurchase Indebtedness (or offer to repurchase) the Notes, at the Company’s option, as provided for under Section 3.07, through open market purchases or by making an offer to all holders to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest (and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset Sale equal to the aggregate amount of Net Proceeds offered to the holders, whether or not the offer is accepted by any or all holders);
(B) in the case of any Net Proceeds received from Asset Sales (other than Subordinated IndebtednessAsset Sales of Collateral), to repay (w) Indebtedness and other Obligations of the Company or any of its Restricted Subsidiaries under a Credit Facility secured by a Permitted Lien, (x) any Indebtedness that was secured by the assets sold in such Asset Sale, (y) the Notes or other Indebtedness that is pari passu with the Notes, or (z) Indebtedness of a Restricted Subsidiary of the Company that is not a Subsidiary Guarantor, in each case other than Indebtedness and other Obligations (other than Subordinated Indebtednessi) incurred in violation of this Indenture or (ii) subordinate in right of payment to the Notes or a Subsidiary Guarantee; provided that, if the Company or any Subsidiary Guarantor repays, redeems or repurchases any Priority Lien Debt, Junior Lien Debt or unsecured Indebtedness held by an Affiliate of the Company pursuant to this clause (2), the Company or such Subsidiary Guarantor must equally and ratably redeem or repurchase (or offer to repurchase) the Notes, at the Company’s option, as provided for under Section 3.07, through open market purchases or by making an offer to all holders to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest (and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset Sale equal to the aggregate amount of Net Proceeds offered to the holders, whether or not the offer is accepted by any or all holders);
(2C) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests Capital Stock of, another Permitted Business; provided, that in the case of another Related Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Business such Person is or becomes a Restricted Subsidiary of the Company;
(3D) to make capital expenditures in respect of a capital expenditurePermitted Business;
(4E) to acquire other long-term assets (other than securities or current assets) that will be are used or useful in a Related BusinessPermitted Business (including, without limitation, Offshore Units, related assets and any related Ready for Sea Costs) or make any deposit, installment or progress payment in respect of such assets or payment of any related Ready for Sea Costs; or
(5F) a combination of prepayments and investments permitted by the foregoing clauses (1), to invest in Additional Assets.
(2), (3) and (4); provided that enter into a binding commitment to apply the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2C), (3D), (E) or (4F) of this Section 4.10(b4.10(b)(1); provided, that such binding commitment shall be treated as applicablea permitted application of the Net Proceeds from the date of such commitment until (i) with respect to any binding commitment to purchase, if acquire or construct Additional Offshore Units and to the extent that, within 365 days after the Asset Sale that generated the any related Ready for Sea Costs with such Net Proceeds, the Company has entered into later of (x) the 365th day from the receipt thereof from the Asset Sale and not abandoned (y) two years from the date any such binding commitment is made and (ii) with respect to any other binding commitment to apply Net Proceeds pursuant to such clauses, the earlier of (x) the date on which such acquisition or rejected a binding agreement to consummate any reinvestment described in clause expenditure is consummated and (2), (3y) or (4) the 180th day following the expiration of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such aforementioned 365-day period.
(c) . Pending the final application of such any Net Proceeds, the Company or any of its Restricted Subsidiary Subsidiaries may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day .
(as extended pursuant to the provisions in the preceding paragraphc) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Any Net Proceeds relating to such from Asset Sale Sales that are not applied or invested as set forth provided in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a will constitute “Net Proceeds Offer Trigger Date”), such Excess Proceeds.” If at any time the aggregate amount of Net Excess Proceeds which have not been applied exceeds $25.0 million, or on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by any earlier date if the Company or such Restricted Subsidiary to so elects, the Company will make an offer to purchase all Holders of Notes (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from and all Holders (and, if required by the terms holders of any other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase, prepay or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets to purchase, prepay or redeem the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes and such other pari passu Indebtedness (plusplus all accrued interest on the Indebtedness and the amount of all fees and expenses, if applicableincluding premiums, an aggregate principal amount or accreted value, as incurred in connection therewith) that may be purchased out of the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), thereof plus accrued and unpaid interest thereonand Additional Amounts, if any, to, but excluding, the date of purchase, prepayment or redemption, subject to the Net rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoingremain after consummation of an Asset Sale Offer, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as Subsidiary of 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into (plusor required to be purchased, if applicableprepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by Notes and the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Company will select such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (basis, based on the principal amount of the Notes andamounts tendered or required to be purchased, if applicable, the principal amount prepaid or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indentureredeemed. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or the provisions of this Section 4.10 by virtue of such compliance.
(e) Upon the expiration of the period for which the Asset Sale Offer remains open, the Company shall deliver to the Trustee for cancellation the Notes or portions thereof that have been purchased in the Asset Sale Offer by the Company. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price for all Notes of such Holder that were so purchased.
(f) Holders electing to have a Note purchased shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note duly completed, or transfer by book-entry transfer, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Company receives not later than one Business Day prior to the purchase date, a notice of withdrawal setting forth the name of the Holder, the principal amount of the Note which was delivered by the Holder for purchase and a statement that such Hxxxxx is withdrawing his election to have such Note purchased.
(g) Notices of an Asset Sale Offer shall be given at least 30 but not more than 60 days before the purchase date to each Holder in accordance with Section 12.01. If any Note is to be purchased in part only, any notice of purchase that relates to such Note shall state the portion of the principal amount thereof that is to be purchased.
(h) A new Note in principal amount equal to the unpurchased portion of any Note purchased in part shall be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the purchase date, unless the Company defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board ) of Directors; and
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeSecurities) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company or any such Restricted Subsidiary of the Company from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Ciii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52% of Consolidated Total Assets and $35 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b4.06(a).
(b) Within 365 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of any the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary of the Company may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1i) to repaypermanently reduce Obligations under the Credit Agreement (and, prepayin the case of revolving Obligations, redeem to correspondingly reduce commitments with respect thereto) or repurchase Pari Passu Indebtedness (provided that if the Company or any Guarantor shall so reduce Obligations under Pari Passu Indebtedness, the Company shall equally and ratably reduce Obligations under the Securities by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, the pro rata principal amount of Securities) or Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);Indebtedness owed to the Company or an Affiliate of the Company,
(2ii) to acquire all an investment in any one or substantially all more businesses (provided that if such investment is in the form of the assets acquisition of another Related BusinessCapital Stock of a Person, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;
(3) to make a ), assets or property or capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be expenditures, in each case used or useful in a Related Similar Business; or, and/or
(5iii) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a combination Person, such acquisition results in such Person becoming a Restricted Subsidiary of prepayments and investments permitted by the foregoing clauses (1Company), properties or assets that replace the properties and assets that are the subject of such Asset Sale; provided that (2), (3x) in the case of Sections 4.06(b)(ii) and (4)iii) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment and (y) in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, the Company or such Restricted Subsidiary enters into another binding commitment within nine months of such cancellation or termination of the prior binding commitment; provided provided, further, that the Company and its or such Restricted Subsidiaries will be deemed to have applied Subsidiary may only enter into such Net Proceeds pursuant to a commitment under clause (2), (3y) or (4) of this Section 4.10(b), as applicable, if and one time with respect to the extent that, within 365 days after the each Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Sale. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary of the Company may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause (1), (2), (3), (4) or (5) the first sentence of this Section 4.10(b4.06(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Securities, as described in clause (i) above, shall be deemed to have been invested whether or not such offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the “Net aggregate amount of Excess Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than exceeds $15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Datemillion, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to shall make an offer to repurchase or all Holders of Securities (and, at the option of the Company, to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”), from ) to purchase the holders maximum principal amount of Securities (and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case that is an integral multiple of $1,000 that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of thereof (or, in the Notes (or event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the principal amount or accreted valuevalue thereof), plus accrued and unpaid interest and additional interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, in connection accordance with any the procedures set forth in this Section 4.06. The Company shall commence an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Excess Proceeds within ten Business Days after the Net date that Excess Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer exceed $15 million by mailing the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as notice required pursuant to the terms of Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million4.06(f).
(f) Each Net Proceeds Offer will be sent 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; provided, and however, prior to commencing an Asset Sale Offer under this Indenture, the Company shall first comply with its “Asset Sale Offer” obligations with respect to the procedures set forth indenture governing the Senior Notes in Section 3.09. Upon receiving notice of accordance with the terms thereof as in effect on the Issue Date and any Net Proceeds Offer, Holders may elect applied thereunder to tender their repurchase Senior Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net shall cease to constitute Excess Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)under this Indenture. To the extent that the aggregate amount of the Notes Securities (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and such Pari Passu Indebtedness) tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited purposes. If the aggregate principal amount of Securities (and such Pari Passu Indebtedness) surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased in the manner described in Section 4.06(e). Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gc) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Trustee as provided above, the Company shall deliver to the Trustee an Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such allocation with the provisions of Section 3.09 4.06(b). On such date, the Company shall also irrevocably deposit with the Trustee or with a paying agent (or, if the Company or a Wholly Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold in trust) an amount equal to the Excess Proceeds to be invested in Cash Equivalents, as directed in writing by the Company, and to be held for payment in accordance with the provisions of this Section 4.10 4.06. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Securities or portions thereof that have been properly tendered to and are to be accepted by virtue the Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the date of purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the Excess Proceeds delivered by the Company to the Trustee are greater than the purchase price of the Securities tendered, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with Section 4.06.
(e) Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Security which was delivered by the Holder for purchase and a statement that such Holder is withdrawing his election to have such Security purchased. If at the end of the Offer Period more Securities (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer than the Company is required to purchase, selection of such complianceSecurities for purchase shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no Securities of $1,000 or less shall be purchased in part. Selection of such Pari Passu Indebtedness shall be made pursuant to the terms of such Pari Passu Indebtedness.
(f) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at least 30 but not more than 60 days before the purchase date to each Holder of Securities at such Holder’s registered address. If any Security is to be purchased in part only, any notice of purchase that relates to such Security shall state the portion of the principal amount thereof that has been or is to be purchased.
Appears in 1 contract
Samples: Indenture (Goodman Holding CO)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries toto consummate, consummate an Asset Sale of Term and Notes Collateral, unless:
(1) the Company Issuer (or 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 (measured as Fair Market Value of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or Term and Notes Collateral sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and;
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash EquivalentsEquivalents or Replacement Assets or a combination of the foregoing. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheet) of the Company Issuer or any such Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note Guarantee and liabilities to the extent owed to the Issuer or any Subsidiary Guaranteeof the Issuer) that are assumed by the transferee of any such assetsassets pursuant to a written customary assignment and assumption agreement that releases the Issuer or such Restricted Subsidiary from further liability therefor;
(Bb) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash within 180 days after the date of such Asset Sale of Term and Notes Collateral (to the extent of the cash received in that conversion);; and
(Cc) any Designated Noncash Non-cash Consideration received by the Company Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 100 million and (b) 3.53.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Western Refining, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, of (as approved determined in good faith by the Company’s Board of Directors; andDirectors of the Company);
(2ii) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 75.0 million and (b) 3.57.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) any Productive Assets, shall, in each of (A), (B), (C) and (D) above, be deemed to be cash for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).this provision; and
(biii) Within 365 days after upon the receipt consummation of any Net Proceeds of any an 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:
(A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or, if required by the Credit Facility, effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)),
(B) to reinvest in Productive Assets, (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.period has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into and, with respect to the amount of such investment, the reference to the 366th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 366th day)), and
(cC) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in any manner not prohibited by this IndentureCash Equivalents. Subject to Section 4.10(e), on On the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause clauses (1iii)(A), (2), iii)(B) and (3), iii)(C) above (4) or (5) of Section 4.10(b) (each, a the “Net Proceeds Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which that have not been applied as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) above on or before such Net Proceeds Asset Sale Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a an “Net Proceeds Asset Sale Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Asset Sale Offer Payment Date”) not less than 15 30 nor more than 60 days following the applicable Net Proceeds Asset Sale Offer Trigger Date, from all Holders (and, if required by the terms and holders of any other Indebtedness of the Company or a Restricted Subsidiary ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make making of such an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu IndebtednessDebt”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal maximum amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and such other Pari Passu Indebtedness) equal to Debt that may be purchased with the Net Proceeds Asset Sale Offer Amount. The offer Amount at a price in any Net Proceeds Offer shall be equal to 100% of the their principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Datedate of purchase (or, in respect of such other Pari Passu Debt, such lesser price, if any, as may be provided for by the terms of such Pari Passu Debt), in accordance with the procedures (including pro-rating in the event of over-subscription and calculation of the principal amount of Notes denominated in different currencies) set forth in this Indenture.
(db) Notwithstanding the foregoing, if If at any time any non-cash consideration (including any Designated Non-cash Consideration) received by the Company or any Restricted SubsidiarySubsidiary 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 4.104.08.
(ec) The Company may defer Notwithstanding the foregoing, if the Asset Sale Offer Amount is less than $50.0 million, the application of the Net Cash Proceeds Offer until there is an aggregate unutilized Net Proceeds constituting such Asset Sale Offer Amount equal to or in excess an Asset Sale Offer may be deferred until such time as such Asset Sale Offer Amount plus the aggregate amount of $200.0 million resulting all Asset Sale Offer Amounts arising subsequent to the Asset Sale Offer Trigger Date relating to such initial Asset Sale Offer Amount from one or more all Asset Sales (by the Company and its Restricted Subsidiaries aggregates at least $50.0 million, at which time the entire unutilized Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Asset Sale Offer Amount, and not just Amounts that have been so deferred to make an Asset Sale Offer (the amount in excess first date the aggregate of all such deferred Asset Sale Offer Amounts is equal to $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date 50.0 million or more shall be deemed to be the earliest date that the Net Proceeds an Asset Sale Offer Amount is equal to or in excess of $200.0 millionTrigger Date).
(f) . Each Net Proceeds Asset Sale Offer will be sent mailed to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.093.05 hereof. Upon receiving notice of the Net Proceeds Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in, in a minimum denominations of $2,000 1,000 or in integral multiples of $1,000 in excess thereof (provided that no Note will be purchased in part if such Note would have a remaining amount of less than $2,000), in exchange for cash. To the extent that the aggregate principal amount of Holders properly tender Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, holders of Pari Passu Indebtedness tendered by Debt, tender Pari Passu Debt) in an aggregate amount exceeding the Asset Sale Offer Amount Notes of tendering Holders and Pari Passu Debt of holders thereof) thereof will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawnamounts tendered). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and other Pari Passu Indebtedness) Debt tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Asset Sale Offer Amount, Amount the Company may use such excess Net Proceeds any remaining Asset Sale Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Asset Sale Offer, the Net Proceeds Asset Sale Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.08, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.08 by virtue of such compliancethereof.
Appears in 1 contract
Samples: First Supplemental Indenture (Central Garden & Pet Co)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the 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 (measured as determined in good faith by the Board of Directors of the date of the definitive agreement with respect to Company or such Asset SaleSubsidiary) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
and (2ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes ; provided that the amount of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(Aa) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guaranteeguarantee thereof) that are assumed by the transferee of any such assets;
assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, and (Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
(Creceived) any Designated Noncash Consideration received by within 90 days following the Company or any Restricted Subsidiary in closing of such Asset Sale having an aggregate fair market valueSale, taken together with all other Designated Noncash Consideration received pursuant to shall be considered cash for purposes of this clause (C) since ii). Notwithstanding the Issue Date that is at the time outstandingimmediately preceding paragraph, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement permitted to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or without complying with such earlier date, paragraph if any, as (i) the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with receives consideration at the requirements time of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder such Asset Sale at least equal to the extent such laws and regulations are applicable in connection with fair market value of the repurchase assets or other property sold, issued or otherwise disposed of Notes pursuant to (as evidenced by a Net Proceeds Offer. To the extent that the provisions resolution of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.the
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, of (as approved determined in good faith by the Company’s Board of Directors; andDirectors of the Company);
(2ii) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 125.0 million and (b) 3.53.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) any Productive Assets. shall, in each of (A), (B), (C) and (D) above, be deemed to be cash for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).this provision; and
(biii) Within 365 days after upon the receipt consummation of any Net Proceeds of any an 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:
(A) to prepay any Senior Debt or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment should be required)),
(B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.period has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into and, with respect to the amount of such investment, the reference to the 366th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 366th day)), or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (iii)(A) and (iii)(B). Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in any manner not prohibited by this IndentureCash Equivalents. Subject to Section 4.10(e), on On the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause clauses (1iii)(A), (2), iii)(B) and (3), iii)(C) above (4) or (5) of Section 4.10(b) (each, a the “Net Proceeds Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which that have not been applied as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) above on or before such Net Proceeds Asset Sale Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a an “Net Proceeds Asset Sale Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Asset Sale Offer Payment Date”) not less than 15 30 nor more than 60 days following the applicable Net Proceeds Asset Sale Offer Trigger Date, from all Holders (and, if required by the terms and holders of any other Indebtedness of the Company or a Restricted Subsidiary ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make making of such an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu IndebtednessDebt”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal maximum amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and such other Pari Passu Indebtedness) equal to Debt that may be purchased with the Net Proceeds Asset Sale Offer Amount. The offer Amount at a price in any Net Proceeds Offer shall be equal to 100% of the their principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Datedate of purchase (or, in respect of such other Pari Passu Debt, such lesser price, if any, as may be provided for by the terms of such Pari Passu Debt), in accordance with the procedures (including pro-rating in the event of over-subscription and calculation of the principal amount of Notes denominated in different currencies) set forth in this Indenture.
(db) Notwithstanding the foregoing, if If at any time any non-cash consideration (including any Designated Non-cash Consideration) received by the Company or any Restricted SubsidiarySubsidiary 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.
(ec) The Company may defer Notwithstanding the foregoing, if the Asset Sale Offer Amount is less than $100.0 million, the application of the Net Cash Proceeds Offer until there is an aggregate unutilized Net Proceeds constituting such Asset Sale Offer Amount equal to or in excess an Asset Sale Offer may be deferred until such time as such Asset Sale Offer Amount plus the aggregate amount of $200.0 million resulting all Asset Sale Offer Amounts arising subsequent to the Asset Sale Offer Trigger Date relating to such initial Asset Sale Offer Amount from one or more all Asset Sales (by the Company and its Restricted Subsidiaries aggregates at least $100.0 million, at which time the entire unutilized Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Asset Sale Offer Amount, and not just Amounts that have been so deferred to make an Asset Sale Offer (the amount in excess first date the aggregate of all such deferred Asset Sale Offer Amounts is equal to $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date 100.0 million or more shall be deemed to be the earliest date that the Net Proceeds an Asset Sale Offer Amount is equal to or in excess of $200.0 millionTrigger Date).
(f) . Each Net Proceeds Asset Sale Offer will be sent mailed to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.093.09 hereof. Upon receiving notice of the Net Proceeds Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in the case of the Dollar Notes, in a minimum denominations of $2,000 1,000 or in integral multiples of $1,000 in excess thereof (provided that no Note will be purchased in part if such Note would have a remaining amount of less than $100,000) and in the case of the Euro Notes, in a minimum of €1,000 or in integral multiples of €1,000 in excess thereof (provided that no Note will be purchased in part if such Note would have a remaining amount of less than €50,000), in exchange for cash. To the extent that the aggregate principal amount of Holders properly tender Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, holders of Pari Passu Indebtedness tendered by Debt, tender Pari Passu Debt) in an aggregate amount exceeding the Asset Sale Offer Amount Notes of tendering Holders and Pari Passu Debt of holders thereof) thereof will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawnamounts tendered). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and other Pari Passu Indebtedness) Debt tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Asset Sale Offer Amount, Amount the Company may use such excess Net Proceeds any remaining Asset Sale Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Asset Sale Offer, the Net Proceeds Asset Sale Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliancethereof.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or any combination of the foregoing. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(Aa) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto, or as would be shown on such balance sheet or footnotes if such liability was incurred subsequent to the date of such balance sheet) ), of the Company or any Restricted such Subsidiary (other than contingent liabilities and liabilities that are by their terms contractually subordinated in right of payment to the Notes or any Subsidiary Note Guarantee) that are assumed or forgiven by the transferee of any such assetsassets pursuant to an agreement that releases the Company or such Subsidiary from further liability, or that are otherwise released or assumed;
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 210 days are after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash (or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion);; and
(Cc) any Designated Noncash Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the time outstanding, not to exceed the greater of (ax) $300.0 50.0 million and (by) 3.52.5% of the Company’s Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Non-Cash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such any Restricted Subsidiary, at its option, Subsidiary may apply an amount equal to the amount of such Net Proceeds from such Asset Saleat its option to any combination of the following:
(1) to repay, prepayredeem, redeem repurchase or repurchase Indebtedness (other than Subordinated Indebtedness) otherwise retire any Senior Debt of the Company or any of its Subsidiaries, including the Notes and other Obligations (other than Subordinated Indebtedness)the Existing Notes;
(2) to acquire all or substantially all of the properties or assets of another Related Business, or to acquire any Equity Interests of another Related Business, a Person primarily engaged in a Permitted Business if, after giving effect to any such acquisition of Equity Interestsacquisition, the Related Business such Person is or becomes a Restricted Subsidiary of the Company;
(3) to make acquire any Capital Stock of a capital expenditurePerson operating a Permitted Business if, after giving effect to such acquisition, such Person operating a Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Permitted Business or make an Investment in Replacement Assets; or
(5) to acquire other assets (other than securities that are used or current assets) useful in a Permitted Business or make an Investment in assets that will be used or useful in a Related Business; or
the Company’s business. The requirement of clauses (2) through (5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b)) shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition, as applicablepurchase, if and Investment or expenditure referred to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, therein is entered into by the Company has (or any Restricted Subsidiary) within the time period specified in this Section 4.10(b) and an amount equal to such Net Proceeds is subsequently applied in accordance with such contract within six months following the date such agreement is entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) into. Pending the final application of the amount of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest utilize such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day .
(as extended pursuant to the provisions in the preceding paragraphc) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Any Net Proceeds relating to such from Asset Sale Sales that are not applied or invested as set forth provided in clause (1), (2), (3), (4) or (5) of Section 4.10(b) hereof will constitute “Excess Proceeds” (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount it being understood that any portion of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase Notes as described in Section 4.10(b)(1) shall be deemed to have been invested whether or not such offer is accepted).
(d) Within 10 Business Days after the aggregate amount of Excess Proceeds exceeds $50.0 million (or, at the Company’s option, on any earlier date or for any lesser amount), the Company will make an offer (the “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (andof Notes, if required by the terms and all holders of any other Indebtedness of the Company ranking pari passu Pari Passu Debt containing provisions similar to those set forth in this Indenture with the Notes in right of payment and which has similar provisions requiring the Company either respect to make an offer offers to repurchase purchase, prepay or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (of sales of assets, to purchase, prepay or redeem the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and such other Pari Passu IndebtednessDebt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) equal to that may be purchased, prepaid or redeemed out of the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereoninterest, if any, to the Net date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding remain after the foregoingconsummation of an Asset Sale Offer, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case Subsidiary may be, in connection with use those Excess Proceeds for any Asset Sale is converted into or sold or purpose not 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand other Pari Passu Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount Trustee will select the Notes and the trustee or accreted value, as the case may be, of agent for such other Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Debt shall select such Pari Passu Indebtedness tendered by the holders thereof) will Debt to be purchased on a pro rata basis (based on except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the principal amount of the Trustee, a method that most nearly approximates pro rata selection) but with such adjustments as necessary so that no Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such other Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer Debt is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturepurchased in part in an authorized denomination. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(ge) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (CVR Energy Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ;
(b) the fair market value is determined by the Company’s Board of DirectorsDirectors and evidenced by a Board Resolution; and
(2c) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash EquivalentsEquivalents and/or Replacement Assets. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A1) any liabilities (liabilities, as shown on the Company’s or such any 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 assetsassets and from which the Company or such Restricted Subsidiary is released from further liability;
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 180 days of receipt, to the extent of the cash received in that conversion);; and
(C3) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C3) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 50 million and (b) 3.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) . Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such a Restricted Subsidiary, Subsidiary may apply those Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1a) to repay, prepay, redeem or repurchase purchase (x) Indebtedness of the Company or any Guarantor that is not Subordinated Indebtedness or (other than Subordinated Indebtednessy) and other Obligations (other than Subordinated Indebtedness)any Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(2b) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3c) to make a capital expenditure;
(4d) to acquire Replacement Assets; or
(e) to acquire other long-term assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by . The Company or the foregoing clauses (1), (2), (3) and (4); provided that the Company and its relevant Restricted Subsidiaries Subsidiary will be deemed to have applied complied with the immediately preceding sentence with respect to any such Net Proceeds if it enters into a binding agreement to make an acquisition or capital expenditure permitted pursuant to clause (2b), (3c), (d) or (4e) of this Section 4.10(b)the immediately preceding sentence in an amount equal to such Net Proceeds within such 365 days; provided that, if the relevant acquisition or capital expenditure is not consummated or completed, as applicable, if and to the extent thatcase may be, within the later of (x) 365 days after the Asset Sale that generated receipt of the relevant Net Proceeds, the Company has entered into Proceeds and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3y) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end date of such 365-day periodbinding agreement, such Net Proceeds will constitute “Excess Proceeds.
(c) ” Pending the final application of such any Net Proceeds, the Company or any the Restricted Subsidiary may temporarily reduce borrowings under invest the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph will constitute Excess Proceeds. When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $50 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders of Notes (and, if required by at the terms option of the Company, to holders of any other Indebtedness of the Company ranking pari passu with the Notes in right or any Guarantor that is not Subordinated Indebtedness and/or any Indebtedness of payment and which has similar provisions requiring any Restricted Subsidiary of the Company either to make an offer to repurchase or to otherwise repurchase(collectively, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtednessother indebtedness”), from ) to purchase the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of and such Pari Passu other Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or 1,000 principal amount and in integral multiples of $1,000 in excess thereof in exchange for cash. To the extent thereof; provided, that the aggregate unrepurchased portion of a Note must be in a minimum denomination of $2,000, out of the Excess Proceeds at a purchase price of 100% of their principal amount (or, in the event such other Indebtedness was issued with significant original issue discount, 100% of Notes the accreted value thereof) without premium, plus accrued but unpaid interest (plusor, in respect of such other Indebtedness, such lesser price, if applicable, the aggregate principal amount or accreted valueany, as may be provided for by the case may be, terms of Pari Passu such Indebtedness) validly tendered by in accordance with the Holders thereof and not withdrawn exceeds procedures (including prorating in the Net Proceeds Offer Amount, Notes event of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereofoversubscription) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)set forth in this Indenture. To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu and such other Indebtedness) tendered pursuant to a Net Proceeds Offer such an offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or purposes. If the aggregate principal amount of Notes (and such other Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Company shall allocate the Excess Proceeds among the Notes and such other Indebtedness that have been surrendered for any other purpose not prohibited by this Indenturepurchase on a pro rata basis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.104.08, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 4.08, by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2ii) at least 75% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination of both. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”Section 4.10(a)(ii), 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 liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note Guarantee and liabilities to the extent owed to the Company or any Subsidiary Guaranteeof the Company) that are assumed by the transferee of any such assetsassets or Equity Interests pursuant to a written assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability therefor;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash Cash Equivalents or Replacement Assets within 180 days of the receipt thereof (to the extent of the cash Cash Equivalents or Replacement Assets received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) 1.5% of Total Assets or (y) $300.0 100.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and).
(Diii) to the fair market value (measured as extent that any consideration received by the Company or such Restricted Subsidiary in such Asset Sale consists of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred type which would constitute Collateral under the Security Documents, such assets are added to the Collateral securing the Notes in clauses (2) or (4) of Section 4.10(b)the manner and to the extent required by this Indenture and the Security Documents.
(b) Within 365 days after the receipt by the Company or any of its Restricted Subsidiaries of any Net Proceeds of any from an Asset Sale, the Company or such Restricted Subsidiary, Subsidiary may apply such Net Proceeds at its option:
(i) to repay (x) Obligations under the Notes or any other Pari Passu Indebtedness (including under the Credit Agreement), may apply an amount equal provided that (A) to the extent that the terms of any such other Pari Passu Indebtedness (other than the Notes), as such terms are in effect on the Issue Date, require that such other Pari Passu Indebtedness be repaid with the Net Proceeds from an Asset Sale prior to repayment of the Notes, the Company or any Restricted Subsidiary shall be entitled to repay such Asset Sale:
other Pari Passu Indebtedness pursuant to this clause (1i) prior to repayrepaying the Notes, prepayand (B) subject to the foregoing clause (A), redeem or repurchase if the Issuers shall so repay any such Pari Passu Indebtedness (other than Subordinated Indebtedness) and other Obligations the Notes), they will, on a ratable basis, make an offer (other than Subordinated Indebtedness);
in accordance with the procedures set forth below for an Asset Sale Offer (2as defined below) to acquire all or substantially all Holders of Notes to purchase at a purchase price equal to 100% of the assets principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of another Related Businessthe Notes, or to acquire any Equity Interests (y) Indebtedness of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
Company that is not a Guarantor (3) to make a capital expenditure;
(4) to acquire other the extent of the value of the assets (other than securities or current assets) that will be used or useful in a Related Businessof such Restricted Subsidiary); or
(5ii) a combination of prepayments and investments permitted by the foregoing clauses to purchase Replacement Assets (1), (2), (3) and (4); provided that such Replacement Assets shall be pledged as Collateral under the Company Security Documents and its Restricted Subsidiaries will be deemed to have applied in accordance with this Indenture and the Security Documents substantially simultaneously with such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and purchase to the extent that, within 365 days after that the assets the subject of such Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2constituted Collateral), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on .
(c) On the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines Issuers determine not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a each such date being referred as an “Net Excess Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have that has not been applied on or before such Net the Excess Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of pursuant to Section 4.10(b) (each a “Net Proceeds Offer AmountExcess Proceeds”) shall be applied by the Company or such Restricted Subsidiary Issuers to make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (and, if required by the terms of any Notes and all holders of other Pari Passu Indebtedness of the Company ranking pari passu containing provisions similar to those set forth in this Indenture with the Notes in right of payment and which has similar provisions requiring the Company either respect to make an offer offers to repurchase or to otherwise repurchase, redeem or repay such Indebtedness purchase with the proceeds from Asset Sales (of sales of assets, to purchase the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and such other Pari Passu Indebtedness) equal to Indebtedness that may be purchased out of the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of and such other Pari Passu Indebtedness), Indebtedness plus accrued and unpaid interest thereoninterest, if any, to the Net Proceeds Offer Payment Datedate of purchase, and shall be payable in cash.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company Issuers may defer the Net Proceeds Asset Sale Offer until there is an are aggregate unutilized Net Excess Proceeds Offer Amount equal to or in excess of $200.0 30.0 million resulting from one or more Asset Sales (Sales, at which time the entire unutilized Net amount of Excess Proceeds Offer Amount, and (not just only the amount in excess of $200.0 30.0 million, ) shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 provided in Section 3.094.10(c). Upon receiving notice If any Excess Proceeds remain after consummation of the Net Proceeds an Asset Sale Offer, Holders the Company and its Restricted Subsidiaries may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange use such Excess Proceeds for cashany purpose not otherwise prohibited by this Indenture. To the extent that If the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, such other Pari Passu Indebtedness tendered by into such Asset Sale Offer exceeds the holders thereof) will amount of Excess Proceeds, the Notes and such other Pari Passu Indebtedness shall be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any and such other Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturetendered. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net Excess Proceeds Offer Amount subject to such Asset Sale shall no longer be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may deemed to be required by applicable lawExcess Proceeds.
(ge) The Company or the applicable Restricted Subsidiary, as the case may be, will 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 each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its their obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Windstream Services, LLC)
Asset Sales. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company (consideration received by the Issuer or the 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 7575.0% of the consideration received in the Asset Sale by the Company Issuer or such Restricted Subsidiary is in the form consists of cash or Cash Equivalents. For Equivalents or Replacement Assets; provided that, with respect to the sale of one or more Properties, up to 75.0% of the consideration may consist of Indebtedness of the purchaser of such Properties so long as such Indebtedness is secured by a first priority Lien on the Properties sold; provided further that, for purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall will 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 Issuer or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assets;assets and for which either (a) the Issuer and any such Restricted Subsidiaries have been validly released by the creditors or (b) the transferee and/or an Affiliate thereof has agreed in writing to fully indemnify the Issuer or such Restricted Subsidiaries;
(B) any securities, evidences of Indebtedness, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash (to the extent or Cash Equivalents within 180 days of the cash received in that conversion);consummation of such Asset Sale; and
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 180.0 million and (b) 3.5an amount equal to 2.5% of Consolidated Adjusted Total Assets at the time Assets, as of receipt any date of such Designated Noncash ConsiderationIncurrence, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Cash Proceeds of any from an Asset Sale, the Company Issuer will or will cause such Restricted Subsidiary, at its option, may apply Net Cash Proceeds (or an amount equal to the amount of such Net Proceeds from such Asset SaleCash Proceeds) to be applied to:
(1) (i) make any repayments of Pari Passu Obligations to repaythe extent required pursuant to the Existing Credit Agreements or any Refinancing thereof (without obligation to permanently reduce commitments with respect thereto unless required under the Existing Credit Agreements or any Refinancing thereof) or (ii) otherwise to permanently reduce Obligations constituting Pari Passu Obligations and, prepayif the Indebtedness repaid is a revolving credit facility or other similar Indebtedness, redeem or repurchase Indebtedness to correspondingly permanently reduce commitments with respect thereto; provided that (other than Subordinated Indebtednessx) and other to the extent the terms of Pari Passu Obligations (other than Subordinated IndebtednessObligations under the Notes) require that such Pari Passu Obligations are repaid with the Net Cash Proceeds from an Asset Sale prior to repayment of other Indebtedness (including the Notes), the Issuer and the Restricted Subsidiaries shall be entitled to repay such other Pari Passu Obligations prior to repaying Obligations under the Notes and (y) except as provided in the foregoing clause (x), if the Issuer or any Restricted Subsidiary shall so reduce Pari Passu Obligations, the Issuer will, equally and ratably, reduce Obligations under the Notes as provided under the caption “—Optional redemption,” through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth herein) to all Holders to purchase their Notes at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased;
(2) to acquire fund all or substantially all a portion of an optional redemption of the assets of another Related Business, Notes pursuant to Section 3.07 hereof or to acquire any Equity Interests of another Related Business, if, after giving effect to any repurchase the Notes in open market transactions if such acquisition of Equity Interests, the Related Business repurchase is or becomes a Restricted Subsidiary of the Companynot otherwise prohibited by this Indenture;
(3) permanently reduce Obligations ranking pari passu with the Notes other than Pari Passu Obligations so long as the relevant Net Cash Proceeds are received with respect to make a capital expenditurean Asset Sale of property that does not constitute Collateral; provided that if the Issuer or any Restricted Subsidiary shall so reduce any such Pari Passu Obligations, the Issuer will equally and ratably reduce or offer to reduce Obligations under the Notes in any manner set forth in clause (1)(y) above (based on the amounts so applied to such repayments or prepayments);
(4) permanently reduce Secured Indebtedness of the Issuer or any Subsidiary Guarantor or Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor, in each case owing to acquire other assets (a Person other than securities the Issuer or current assetsany of its Restricted Subsidiaries;
(5) that will be used make (A) an investment in or useful acquisition of any one or more Replacement Assets, (B) capital expenditures in a Related BusinessBusiness owned by the Issuer or a Restricted Subsidiary or (C) an acquisition of other assets of a nature or type that are used in or useful to the business of the Issuer or any of its Restricted Subsidiaries existing on the date of such investment, capital expenditure or acquisition; provided that the assets (including Capital Stock) acquired with the Net Cash Proceeds of a disposition of Collateral are pledged as Collateral to the extent required under the Security Documents (except to the extent a Lien thereon is not required by, or is released by lenders, under the Existing Credit Agreements or any Refinancing thereof); or
(56) a any combination of prepayments and investments permitted by the foregoing clauses (1)foregoing; provided, (2), (3) and (4); provided that the Company and its Restricted Subsidiaries Issuer will be deemed to have applied such Net Proceeds pursuant to complied with the provisions described in clause (2), (3) or (45) of this Section 4.10(b), as applicable, 4.09 if and to the extent thatthat the Issuer or any of its Restricted Subsidiaries enter into a definitive agreement committing to make such investment, acquisition or capital expenditure or so invest within 365 days after the Asset Sale that generated the Net Proceedssuch 365-day period, the Company has entered into and not abandoned which acquisition, capital expenditure or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed investment shall be made within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net ProceedsCash Proceeds as described above, the Company or any Restricted Subsidiary Issuer may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, Indebtedness or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or The amount of such Restricted Subsidiary determines not excess Net Cash Proceeds required to apply the Net Proceeds relating be applied (or to be committed to be applied) during such Asset Sale 365-day period as set forth in clause the preceding sentence and not applied (1)or committed to be applied) as so required by the end of such period will constitute “Excess Proceeds.” If, (2)as of the first day of any calendar month, (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such the aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds previously subject to an Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of to Purchase pursuant to this Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor 4.09 totals more than 60 days following $75.0 million, the applicable Net Proceeds Issuer must commence, not later than 20 Business Days thereafter, and consummate an Offer Trigger Date, to Purchase from the Holders and all Holders (and, if required by the terms holders of any other Indebtedness of the Company ranking that is pari passu with the Notes containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer Offer to repurchase Purchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)of sales of assets, from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted valuebasis, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) and such other pari passu Indebtedness equal to the Net Excess Proceeds Offer Amount. The offer on such date, at a purchase price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted valueand such other pari passu Indebtedness plus, as the case may bein each case, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereonto, if any, to but not including the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicable, and other pari passu Indebtedness with the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly Notes tendered by the Holders thereof and not withdrawn into such Offer to Purchase exceeds the Net Proceeds Offer Amountamount of Excess Proceeds, then the Notes of tendering Holders (and, if applicable, Pari Passu and such other pari passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes andand such other pari passu Indebtedness tendered. Upon completion of each Offer to Purchase, if applicableany remaining Excess Proceeds (subject, the principal amount or accreted value, as in the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To an Offer to Purchase for less than the extent that the aggregate full amount of the Notes (plusNotes, if applicable, the aggregate principal amount or accreted value, as the case to such Offer to Purchase) will no longer be deemed to be Excess Proceeds and may be, of any Pari Passu Indebtedness) tendered pursuant be applied to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by under this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds Offeran Offer to Purchase in connection with an Asset Sale. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.09, the Company or such Restricted Subsidiary shall Issuer will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.09 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (RLJ Lodging Trust)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 Note Guarantee) that are assumed by the transferee of any such assetsassets 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 any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion), within 90 days following the closing of such Asset Sale;
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10(b).4.10; and
(bD) any Designated Non-Cash Consideration that is received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d) that is at that time outstanding, no greater than the greater of (i) 3% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration and (ii) $30.0 million (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). The Fair Market Value of any assets or securities that are required to be valued by this subclause (D) will be determined by the Board of Directors of the Company, and such determination must be based upon an opinion or appraisal issued by an accounting, appraisal, valuation or investment banking firm of national standing if the Fair Market Value exceeds $20.0 million. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem repay secured Indebtedness or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated under a Credit Facility or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, if the Indebtedness repaid is revolving credit Indebtedness), to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related BusinessPermitted Business or that replace the assets that were the subject of such Asset Sale; or
(5) a to make any combination of prepayments and investments permitted by the foregoing applications set forth in the immediately preceding clauses (1), (2), (3) and through (4); provided that the Company and its Restricted Subsidiaries will be deemed . A binding contract to have applied such apply Net Proceeds pursuant to clause in accordance with clauses (2), 1) through (35) or (4) of this Section 4.10(b), as applicable, if and to above will toll the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application period in respect of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest provided that such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (binding contract shall be treated as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount permitted application of Net Proceeds from the date of such binding contract until and only until the earlier of (x) the date on which have such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period. If such acquisition or expenditure is not been applied consummated on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the 180th day and the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be) shall not have applied such Net Proceeds pursuant to clauses (1) through (5) above on or before such 180th day, such binding contract shall be deemed not to have been a permitted application of the Net Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the 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 second paragraph of this Section 4.10 and with respect to which an Asset Sale Offer has not been made will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, within five days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and, at the option of the Company (unless otherwise required by the terms thereof), all holders of other Indebtedness 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 in accordance with Section 3.09 hereof 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 Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Special 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 may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale 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. 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Fti Consulting Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 Note Guarantee) that are assumed by the transferee of any such assetsassets 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 any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion), within 90 days following the closing of such Asset Sale;
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10(b).4.10; and
(bD) any Designated Non-Cash Consideration that is received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d) that is at that time outstanding, no greater than the greater of (i) 3% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration and (ii) $30.0 million (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). The Fair Market Value of any assets or securities that are required to be valued by this Section 4.10 will be determined by the Board of Directors of the Company, and such determination must be based upon an opinion or appraisal issued by an accounting, appraisal, valuation or investment banking firm of national standing if the Fair Market Value exceeds $20.0 million. Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem repay secured Indebtedness or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated under a Credit Facility or Indebtedness of a Restricted Subsidiary that is not a Guarantor and, if the Indebtedness repaid is revolving credit Indebtedness), to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related BusinessPermitted Business or that replace the assets that were the subject of such Asset Sale; or
(5) a to make any combination of prepayments and investments permitted by the foregoing applications set forth in the immediately preceding clauses (1), (2), (3) and through (4); provided that the Company and its Restricted Subsidiaries will be deemed . A binding contract to have applied such apply Net Proceeds pursuant to clause in accordance with clauses (2), 1) through (35) or (4) of this Section 4.10(b), as applicable, if and to above will toll the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application period in respect of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest provided that such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (binding contract shall be treated as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount permitted application of Net Proceeds from the date of such binding contract until and only until the earlier of (x) the date on which have such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period. If such acquisition or expenditure is not been applied consummated on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the 180th day and the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be) shall not have applied such Net Proceeds pursuant to clauses (1) through (5) above on or before such 180th day, such binding contract shall be deemed not to have been a permitted application of the Net Proceeds. Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the 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 second paragraph of this Section 4.10 and with respect to which an Asset Sale Offer has not been made will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $10.0 million, within five days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and, at the option of the Company (unless otherwise required by the terms thereof), all holders of other Indebtedness 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 in accordance with Section 3.09 hereof 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 Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Special 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 may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale 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. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Fti Consulting Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith ;
(b) the fair market value is determined by the Company’s Board of DirectorsDirectors and evidenced by a Board Resolution; and
(2c) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or cash, Cash EquivalentsEquivalents and/or Replacement Assets. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A1) any liabilities (liabilities, as shown on the Company’s or such any 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 assetsassets and from which the Company or such Restricted Subsidiary is released from further liability;
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 180 days of receipt, to the extent of the cash received in that conversion);; and
(C3) any Designated Noncash Non cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non cash Consideration received pursuant to this clause (C3) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 100.0 million and (b) 3.52.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non cash Consideration (with the fair market value of each item of Designated Noncash Non cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) . Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company or such a Restricted Subsidiary, Subsidiary may apply those Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1a) to repay, prepay, redeem or repurchase purchase (x) Indebtedness of the Company or any Guarantor that is not Subordinated Indebtedness or (other than Subordinated Indebtednessy) and other Obligations (other than Subordinated Indebtedness)any Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(2b) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3c) to make a capital expenditure;
(4d) to acquire Replacement Assets; or
(e) to acquire other long term assets (other than securities or current assets) that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by . The Company or the foregoing clauses (1), (2), (3) and (4); provided that the Company and its relevant Restricted Subsidiaries Subsidiary will be deemed to have applied complied with the immediately preceding sentence with respect to any such Net Proceeds if it enters into a binding agreement to make an acquisition or capital expenditure permitted pursuant to clause (2b), (3c), (d) or (4e) of this Section 4.10(b)the immediately preceding sentence in an amount equal to such Net Proceeds within such 365 days; provided that, if the relevant acquisition or capital expenditure is not consummated or completed, as applicable, if and to the extent thatcase may be, within the later of (x) 365 days after the Asset Sale that generated receipt of the relevant Net Proceeds, the Company has entered into Proceeds and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3y) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end date of such 365-day periodbinding agreement, such Net Proceeds will constitute “Excess Proceeds.
(c) ” Pending the final application of such any Net Proceeds, the Company or any the Restricted Subsidiary may temporarily reduce borrowings under invest the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Subject to Section 4.10(e), on the 366th day (Any Net Proceeds from Asset Sales that are not applied or invested as extended pursuant to the provisions provided in the preceding paragraph) after an Asset Sale or such earlier date, if any, as paragraph will constitute Excess Proceeds. When the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Excess Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1)exceeds $75 million, (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to shall make an offer to purchase (the an “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders of Notes (and, if required by at the terms option of the Company, to holders of any other Indebtedness of the Company ranking pari passu with the Notes in right or any Guarantor that is not Subordinated Indebtedness and/or any Indebtedness of payment and which has similar provisions requiring any Restricted Subsidiary of the Company either to make an offer to repurchase or to otherwise repurchase(collectively, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtednessother indebtedness”), from ) to purchase the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate maximum principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of and such Pari Passu other Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or 1,000 principal amount and in integral multiples of $1,000 in excess thereof in exchange for cash. To the extent thereof; provided that the aggregate unrepurchased portion of a Note must be in a minimum denomination of $2,000, out of the Excess Proceeds at a purchase price of 100% of their principal amount (or, in the event such other Indebtedness was issued with significant original issue discount, 100% of Notes the accreted value thereof) without premium, plus accrued but unpaid interest (plusor, in respect of such other Indebtedness, such lesser price, if applicable, the aggregate principal amount or accreted valueany, as may be provided for by the case may be, terms of Pari Passu such Indebtedness) validly tendered by in accordance with the Holders thereof and not withdrawn exceeds procedures (including prorating in the Net Proceeds Offer Amount, Notes event of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by oversubscription) set forth in the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)Indenture. To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu and such other Indebtedness) tendered pursuant to a Net Proceeds Offer such an offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or purposes. If the aggregate principal amount of Notes (and such other Indebtedness) surrendered by holders thereof exceeds the amount of Excess Proceeds, the Company shall allocate the Excess Proceeds among the Notes and such other Indebtedness that have been surrendered for any other purpose not prohibited by this Indenturepurchase on a pro rata basis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 3.04 or this Section 4.104.03, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 3.04 or this Section 4.10 4.03 by virtue of such complianceconflict.
Appears in 1 contract
Samples: First Supplemental Indenture (Lifepoint Health, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) solely with respect to any Asset Sales of any of the Principal Mine Assets, at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will 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 Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against such liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 120 days after such Asset Sale, to the extent of the cash received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is has at the that time outstandingnot been converted in cash or a Cash Equivalent, not to exceed the greater of (ax) $300.0 80.0 million and (by) 3.54.00% of Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses (23) or (45) of the next paragraph of this Section 4.10(b)4.10.
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Saleoptions:
(1) to repay, prepay, redeem or repurchase repay Indebtedness that is secured by a Lien;
(2) to repay Obligations under other Indebtedness (other than Subordinated Disqualified Stock or subordinated Indebtedness) and other Obligations (), other than Subordinated Indebtedness)Indebtedness owed to the Company or an Affiliate of the Company; provided that the Company shall equally and ratably reduce the Obligations under the Notes as provided under Section 3.07 hereof, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the accrued but unpaid interest on the amount of the Notes that would otherwise be prepaid;
(23) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(34) to make a capital expenditure;
(45) to acquire other assets (other than securities or that are not classified as current assets) assets under GAAP and that will be are used or useful in a Related Permitted Business; or
(56) a any combination of prepayments and investments permitted by the foregoing foregoing; provided that, in the case of clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or and (5) of Section 4.10(b) (eachabove, a “binding commitment shall be treated as a permitted application of the Net Proceeds Offer Trigger Date”), from the date of such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date commitment so long as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of the date thereof; provided that if any commitment is later canceled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds from the later of (i) the date of such cancelation or termination or (ii) the 365th day after the receipt of such Net Proceeds from the applicable Asset Sale. Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $50.0 million, within five Business Days thereof, the Company will make an offer Asset Sale Offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any Notes and all holders of other Indebtedness of the Company ranking that (i) is pari passu with the Notes in right Notes, and (ii) contemporaneously require the purchase, prepayment or redemption of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the “Pari Passu Indebtedness”)Indebtedness and the amount of all fees and expenses, from including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the holders of such Pari Passu Indebtedness) Excess Proceeds. The Excess Proceeds shall be allocated between the Notes and the other pari passu Indebtedness referred to above on a pro rata basis (in proportion to based on the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amountsuch Indebtedness then outstanding. The offer price with respect to the Notes in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereon, if any, to the Net date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any remain after consummation of an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer and the contemporaneous offer with respect to any such non-cash consideration)other pari passu Indebtedness contemplated above, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Supplemental Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicabletendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocable to the Notes, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (or, in the case of Notes issued in global form, in accordance with the applicable procedures of DTC, based on the principal amount amounts tendered or required to be prepaid or redeemed) (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). The remainder of the Notes and, if applicable, Excess Proceeds allocable to the principal amount or accreted value, as the case may be, of any such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to will be repurchased in a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturesimilar manner. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, of (as approved determined in good faith by the Company’s Board of Directors; andDirectors of the Company);
(2) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assets;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 125.0 million and (b) 3.53.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; ), and
(D) the fair market value any Productive Assets, shall, in each of (measured as of the date such Equity Interests or assets are receivedA), (B), (C) and (D) of any Equity Interests this Section 4.10(a)(2), be deemed to be cash for the purposes of this provision or assets of the kind referred to in clauses (2) or (4) for purposes of Section 4.10(b).; and
(b3) Within 365 days after upon the receipt consummation of any Net Proceeds of any an 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:
(A) to prepay Indebtedness under the Credit Facility (or other Indebtedness of the Company or a Guarantor secured by a Lien permitted by clause (6) of the definition of Permitted Liens) or Indebtedness of a Restricted Subsidiary that is not a Guarantor,
(B) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day periodperiod has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into and, with respect to the amount of such investment, the reference to the 366th day after an Asset Sale in the second following sentence shall be deemed to be a reference to the 121st day after the date on which such binding agreement is entered into (but only if such 121st day occurs later than such 366th day)), or
(C) a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).
(cb) Pending the final application of any such Net Cash Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in any manner not prohibited by this IndentureCash Equivalents. Subject to Section 4.10(e), on On the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines by Board Resolution not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause clauses (1a)(3)(A), (2), a)(3)(B) and (3), (4) or (5a)(3)(C) of this Section 4.10(b) 4.10 (each, a the “Net Proceeds Asset Sale Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which that have not been applied as set forth in clauses (a)(3)(A), (a)(3)(B) and (a)(3)(C) of this Section 4.10 on or before such Net Proceeds Asset Sale Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a an “Net Proceeds Asset Sale Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) Asset Sale Offer on a date (the “Net Proceeds Asset Sale Offer Payment Date”) not less than 15 30 nor more than 60 days following the applicable Net Proceeds Asset Sale Offer Trigger Date, from all Holders (and, if required by the terms and holders of any other Indebtedness of the Company or a Restricted Subsidiary ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make making of such an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu IndebtednessDebt”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, maximum amount of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as Debt that may be purchased with the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Asset Sale Offer Amount. The offer Amount at a price in any Net Proceeds Offer shall be equal to 100% of the their principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Datedate of purchase (or, in respect of such Pari Passu Debt, such lesser price, if any, as may be provided for by the terms of such Pari Passu Debt).
(dc) Notwithstanding the foregoing, if If at any time any non-cash consideration (including any Designated Non-cash Consideration) received by the Company or any Restricted SubsidiarySubsidiary 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.
(ed) The Company may defer Notwithstanding the foregoing, if the Asset Sale Offer Amount is less than $100.0 million, the application of the Net Cash Proceeds Offer until there is an aggregate unutilized Net Proceeds constituting such Asset Sale Offer Amount equal to or in excess an Asset Sale Offer may be deferred until such time as such Asset Sale Offer Amount plus the aggregate amount of $200.0 million resulting all Asset Sale Offer Amounts arising subsequent to the Asset Sale Offer Trigger Date relating to such initial Asset Sale Offer Amount from one or more all Asset Sales (by the Company and its Restricted Subsidiaries aggregates at least $100.0 million, at which time the entire unutilized Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Asset Sale Offer Amount, and not just Amounts that have been so deferred to make an Asset Sale Offer (the amount in excess first date the aggregate of all such deferred Asset Sale Offer Amounts is equal to $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date 100.0 million or more shall be deemed to be the earliest date that the Net Proceeds an Asset Sale Offer Amount is equal to or in excess of $200.0 millionTrigger Date).
(f) . Each Net Proceeds Asset Sale Offer will be sent transmitted to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09this Indenture. Upon receiving notice of the Net Proceeds Asset Sale Offer, Holders may elect to tender their Notes Notes, in whole or in part part, in a minimum denominations of $2,000 or an integral multiples of $1,000 in excess thereof (provided that no note will be purchased in part if such note would have a remaining amount of less than $2,000) in exchange for cash. To the extent that the aggregate principal amount of Holders properly tender Notes (plusand, if applicable, the aggregate principal amount or accreted value, as the case may be, holders of Pari Passu IndebtednessDebt, tender Pari Passu Debt) validly tendered by in an aggregate amount exceeding the Holders thereof and not withdrawn exceeds the Net Proceeds Asset Sale Offer Amount, Notes of tendering Holders (and, if applicable, and Pari Passu Indebtedness tendered by the Debt of holders thereof) thereof will be purchased on a pro rata basis (based on amounts tendered) subject to the principal amount Minimum Denominations requirement. An Asset Sale Offer shall remain open for a period of the Notes and, if applicable, the principal amount 20 Business Days or accreted value, such longer period as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)be required by law. To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and Pari Passu Indebtedness) Debt tendered pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Asset Sale Offer Amount, the Company may use such excess Net Proceeds any remaining Asset Sale Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Asset Sale Offer, the Net Proceeds Asset Sale Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(ge) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 3.08 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 3.08 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Jarden Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed dis- posed of, as approved in good faith by the Company’s Board of Directors; and;
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Re- stricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will 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 contin- gent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNote Guaran- tee) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or in- demnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against such liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 180 days after such Asset Sale, to the extent of the cash received in that conversion);
(C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is has at the that time outstandingnot been converted into cash or a Cash Equivalent, not to exceed the greater of (ax) $300.0 100.0 million and (by) 3.52.5% of Consolidated Total Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent subse- quent changes in value); and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests stock or assets of the kind referred to in clauses clause (25) or (47) of Section 4.10(b);
(3) if such Asset Sale involves the disposition of Collateral, (a) the Company and such Re- stricted Subsidiary have complied with the provisions of this Indenture and the Security Documents with respect to such disposed Collateral and (b) if the consideration received by the Company or such Restricted Subsidiary is in the form of assets that are Equity Interests pursuant to clause (2) above, the Company shall, or cause such Restricted Subsidiary to, take such action as may be reasonably necessary to cause such as- sets to be made subject to the Lien of the Security Documents in the manner and to the extent required in this Indenture and the Security Documents; and
(4) if such Asset Sale involves the disposition of assets of any Streaming Subsidiaries, which assets do not constitute Collateral, and if the consideration received by the Company or such Restricted Subsidiary is in the form of assets that are Equity Interests pursuant to clause (2) above, the Company shall, or cause such Restricted Subsidiary to, take such action as may be reasonably necessary to cause such as- sets to become Shared Streaming Collateral and be made subject to the Lien of the Security Documents.
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) if the assets sold or otherwise disposed of secured any Indebtedness but did not secure the Notes Obligations, to repayrepay such Indebtedness;
(2) if the assets sold or otherwise disposed of secured the Senior Credit Facility Obligations or any other Indebtedness secured by a Lien ranking higher than a Lien securing the Notes, prepayto repay such Senior Credit Facility Obligations or other Indebtedness;
(3) (a) if the assets sold or otherwise disposed of constituted Shared Streaming Collateral and such sale is made pursuant to a foreclosure proceeding or bankruptcy proceeding pursuant to which the Streaming Intercreditor Agreement applies, redeem a portion of such Net Proceeds (not to exceed 56% of such Net Proceeds) may be applied to repay the Streaming Obligations in accordance with the terms of the Stream- ing Intercreditor Agreement or repurchase (b) if the assets sold or otherwise disposed of constituted assets of any Streaming Subsidiaries, which assets did not constitute Collateral, and such sale was a result of any act of expropriation, a portion of such Net Proceeds may be applied to repay the Streaming Obligations in accord- ance with the terms of the Streaming Purchase Agreement and, in either case (a) or (b), the remaining Net Proceeds may be applied to repay Streaming Pari Passu Obligations; provided that the Company shall equally and ratably reduce the Obligations under the Notes as provided under Article 4 hereof, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest, on the amount of the Notes that would otherwise be prepaid;
(4) if otherwise, to repay Obligations under other Indebtedness (other than Subordinated Disqualified Stock or subordinated Indebtedness) and other Obligations (), other than Subordinated Indebtedness)Indebtedness owed to the Company or an Affiliate of the Company; provided that the Company shall equally and ratably reduce the Obligations under the Notes as provided under Section 3.07 hereof, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the accrued but unpaid interest on the amount of the Notes that would otherwise be prepaid;
(25) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permit- xxx Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(36) to make a capital expenditure;
(47) to acquire other assets (other than securities or that are not classified as current assets) assets under IFRS and that will be are used or useful in a Related Permitted Business; or
(5) a 8) any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); foregoing. provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board case of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (45), (6) or and (57) above, a binding commitment shall be treated as a permitted application of Section 4.10(b) (each a “the Net Proceeds Offer Amount”) from the date of such commitment so long as the Company or such Re- stricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be ap- plied to satisfy such commitment within 180 days of the date thereof or, if such commitment is subsequently can- celled or terminated for any reason before the Net Proceeds are applied as contemplated by such binding commit- ment, the Company or Restricted Subsidiary may enter into a second binding commitment, which shall also be applied by treat- ed as a permitted application of the Net Proceeds from the date of such first binding commitment so long as the Company or such Restricted Subsidiary enters into such second binding commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such second binding commitment within 180 days of the date of such second binding commitment; provided that if any commitment is later canceled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds from the later of (i) the date of such cancelation or termination or (ii) the 365th day after the receipt of such Net Proceeds from the appli- cable Asset Sale. Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, within five Business Days thereof, the Company will make an offer Asset Sale Offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders of Notes and all hold- ers of other Indebtedness that (andi) is pari passu with the Notes, if required and (ii) contemporaneously requires the purchase, prepayment or redemption of such Indebtedness with the proceeds of sales of assets in accordance with Section 3.10 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebted- ness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds; provided that (x) to the extent such Excess Proceeds resulted from the disposition of Shared Streaming Collateral or any as- sets of any Streaming Subsidiaries, which assets did not constitute Shared Streaming Collateral, only Indebtedness that is secured equally and ratably by the terms of any other Indebtedness of the Company ranking Shared Streaming Collateral shall be considered pari passu with the Notes in right for these purposes, (y) to the extent such Excess Proceeds resulted from the disposition of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchaseShared Bank Collateral, redeem or repay such only Indebtedness that constitutes Bank Pari Passu Obligations shall be considered pari passu with the proceeds from Asset Sales Notes for these purposes and (z) to the “Pari Passu Indebtedness”), extent such Excess Proceeds resulted from the holders disposition of such Pari Passu Indebtedness) any other assets, any sen- ior Indebtedness that is not subordinated to the N or the Note Guarantees shall be considered pari passu with the Notes for these purposes. The Excess Proceeds shall be allocated between the Notes and the other pari passu In- debtedness referred to above on a pro rata basis (in proportion to based on the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amountsuch Indebtedness then outstand- ing. The offer price with respect to the Notes in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereon, if any, to the Net date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any remain after consummation of an Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received Offer and the contemporaneous offer with respect to any such non-cash consideration)other pari passu Indebtedness contemplated above, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicabletendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocable to the Notes, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (or, in the case of Notes issued in global form, in accordance with the ap- plicable procedures of DTC, based on the principal amount amounts tendered or required to be prepaid or redeemed) (with such ad- justments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an inte- gral multiple of $1,000 in excess thereof, will be purchased). The remainder of the Notes and, if applicable, Excess Proceeds allocable to the principal amount or accreted value, as the case may be, of any such Pari Passu other pari passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to will be repurchased in a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturesimilar manner. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of all applicable securities laws and regulations, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase each repur- chase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations regula- tions conflict with the provisions of Section 3.09 3.10 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable ap- plicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 3.10 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture
Asset Sales. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company (or the Restricted SubsidiaryAsset Sale is for fair market value, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board of Directors; andDirectors or senior management of the Parent;
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form consists of cash or Cash Equivalents. For purposes Equivalents or assets described in clauses (4) or (5) of this provision only Section 4.10(b) or clauses (and specifically not for the purposes 1) or (2) of Section 4.10(c) (or any combination of the definition of “Net Proceeds”foregoing), with each of the following shall be deemed considered to be cashcash for purposes of this clause (2) and for no other purpose:
(A) the assumption or discharge by the purchaser of any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent available balance sheet) sheet of the Company Parent 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;Subordinated Debt),
(B) instruments or securities received from the purchaser that are promptly, but in any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that event within 180 days are of the closing, converted by the Company Parent or such Restricted Subsidiary into cash (to cash, to the extent of the cash received in that conversion);actually so received, and
(C) any Designated Noncash Non-cash Consideration received by the Company Parent or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (aA) $300.0 25.0 million and (bB) 3.52.0% of Consolidated Total Tangible Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received (and without giving effect to subsequent changes in value); and
(D3) in the fair market value (measured case of an Asset Sale that constitutes a sale of Notes Priority Collateral, the Issuer or the Guarantor, as of the date case may be, deposits the Net Cash Proceeds therefrom immediately upon receipt thereof as Notes Priority Collateral in the Notes Priority Collateral Proceeds Account; provided that no Net Cash Proceeds from any such Equity Interests Asset Sale shall be required to be deposited in the Notes Priority Collateral Proceeds Account until the aggregate Net Cash Proceeds from all such Asset Sales that have not been so deposited or assets are received) of any Equity Interests or assets of the kind referred to applied in clauses (2) or (4) of accordance with this Section 4.10(b)4.10 as provided below exceeds $10.0 million.
(b) Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale other than (1) a sale of any Asset SaleNotes Priority Collateral or (2) a Sale of a Guarantor, the Company Parent or such any of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to such Net Cash Proceeds at its option and to the Net Proceeds from such Asset Saleextent it so elects:
(1) to repay, prepayrepurchase or redeem (i) ABL Debt Obligations or (ii) except with respect to Net Cash Proceeds of an Asset Sale of ABL Priority Collateral, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Parity Lien Obligations (other than Subordinated Indebtedness)including Parity Lien Obligations under the Notes) or;
(2) to repay Debt and other obligations of a Restricted Subsidiary that is not a Guarantor (other than the Issuer), other than Debt owed to the Parent or its Restricted Subsidiaries; or
(3) with respect to Net Cash Proceeds of an Asset Sale of ABL Priority Collateral, to repay any Parity Lien Debt of the Issuer or any Guarantor; provided that the Parent shall equally and ratably redeem or repurchase the Notes as described under Section 3.03 hereof, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to apply a pro rata portion of such Net Cash Proceeds to purchase the Notes at 100% (or more, at the Issuer’s option) of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, to the date of repurchase (which offer shall satisfy in full the requirement to redeem or repurchase the Notes on a pro rata basis pursuant to this clause, whether or not any Notes are tendered in such offer);
(4) to acquire (i) any assets used or useful in a Permitted Business or (ii) all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the CompanyParent;
(35) to make an Investment in replacement assets or make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(56) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4)foregoing; provided that the Company Parent and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or complied with the provision described in clauses (4) and (5) of this Section 4.10(b)) if, as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Company Parent or a Restricted Subsidiary has entered into (and not abandoned or rejected rejected) a binding agreement to consummate any reinvestment acquire the assets or Capital Stock of a Permitted Business, purchase replacement assets or make a capital expenditure in compliance with the provision described in clause clauses (4) and (5) of this Section 4.10(b), and that acquisition, purchase or capital expenditure is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any such Net Cash Proceeds, Parent and its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 365 days after the receipt of any Net Cash Proceeds from an Asset Sale that constitutes (1) a sale of Notes Priority Collateral or (2) a Sale of a Guarantor, the Parent (or one or more Restricted Subsidiaries of the Parent, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to make an Investment in other assets or property that would constitute Notes Priority Collateral;
(2) to make an Investment in Capital Stock of another Permitted Business if, after giving effect to such Investment, the Permitted Business becomes a Guarantor or is merged into or consolidated with the Issuer or any Guarantor;
(3) to make a capital expenditure with respect to assets that constitute Notes Priority Collateral;
(4) to repay Debt secured by a Permitted Lien on any Notes Priority Collateral that was sold in such Asset Sale, if such Permitted Lien ranks prior to the Liens securing the Notes;
(5) to repay, repurchase or redeem Parity Lien Obligations (including Parity Lien Obligations under the Notes); provided that the Parent shall equally and ratably redeem or repurchase the Notes as described under the Section 3.03 hereof through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to apply a pro rata portion of such Net Cash Proceeds to purchase the Notes at 100% (or more, at the Issuer’s option) of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, to the date of repurchase (which offer shall satisfy in full the requirement to redeem or repurchase the Notes on a pro rata basis pursuant to this clause, whether or not any Notes are tendered in such offer); or
(6) any combination of the foregoing; provided that the Parent and its Restricted Subsidiaries will be deemed to have complied with the provisions described in clauses (1), (2) and (3) or (4) of this paragraphSection 4.10(c) if, and such reinvestment to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Parent or a Restricted Subsidiary has entered into (and not abandoned or rejected) a binding agreement to make an Investment in assets or property that would constitute Notes Priority Collateral or make an Investment in Capital Stock of another Permitted Business or to make a capital expenditure with respect to assets that constitute Notes Priority Collateral in compliance with the provisions described in clauses (1), (2) and (3) of this Section 4.10(c), and that purchase or capital expenditure is thereafter completed within 180 days after the end of such 365-day period.
(cd) Pending the final application The Net Cash Proceeds of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale not applied pursuant to Sections 4.10(b) and (c) above, within the time period provided therein will constitute “Excess Proceeds.” Excess Proceeds of less than $25.0 million will be carried forward and accumulated. When accumulated Excess Proceeds equals or exceeds such earlier dateamount, if anythe Parent must, as the Board of Directors of the Company or of such Restricted Subsidiary determines not within 30 days, make an Offer to apply the Net Proceeds relating to such Asset Sale as set forth in clause Purchase Notes having a principal amount equal to
(1)) accumulated Excess Proceeds, multiplied by
(2), ) a fraction (3), (4x) or (5) the numerator of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion is equal to the respective outstanding principal amounts or accreted value, as the case may be, amount of the Notes (including any Additional Notes) and any such Pari Passu Indebtedness(y) an aggregate the denominator of which is equal to the outstanding principal amount of the Notes (plusincluding any Additional Notes) and all other Parity Lien Debt similarly required to be repaid, if applicableredeemed or tendered for in connection with the Asset Sale, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal rounded down to the Net Proceeds Offer Amountnearest $1,000. The offer purchase price in any Net Proceeds Offer shall for the Notes will be equal to 100% of the principal amount plus accrued interest to the date of purchase. If the Offer to Purchase is for less than all of the outstanding Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, Notes 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the principal amount in excess of $200.0 million, shall be applied as required the purchase amount are tendered and not withdrawn pursuant to Section 4.10the offer, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is Issuer will purchase Notes having an aggregate principal amount equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent to the record Holders as shown purchase amount on the register of Holders within 25 days following the Net Proceeds Offer Trigger Datea pro rata basis, with a copy to the Trustee, and shall comply with the procedures set forth in Section 3.09. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their adjustments so that only Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent principal amount will be purchased; provided, that the aggregate unpurchased portion of a Note must be in a minimum principal amount of Notes (plus$2,000. Upon completion of the Offer to Purchase, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Excess Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount reset at zero, and any Excess Proceeds remaining after consummation of the Notes and, if applicable, the principal amount or accreted value, as the case Offer to Purchase may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or be used for any other purpose not otherwise prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Evraz North America PLC)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration therefor at the time of such Asset Sale at least equal to the fair market value (measured as at the time of such Asset Sale of the date of the definitive agreement with respect to such Asset Sale) of the property, assets or Equity Interests issued or stock sold or otherwise disposed of, of (as approved determined in good faith by the Company’s Board of Directors; and);
(2) at least 75% of the consideration received in the Asset Sale by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash or cash, Cash Equivalents. For Equivalents and/or Replacement Assets (as defined) and is received at the time of such disposition; provided that, for purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall be deemed to be cash:
(A) the amount of any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Subsidiary GuaranteeGuarantee of a Guarantor) that are assumed by the transferee of any such assets;
, (B) the fair market value of any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
or Cash Equivalents within 360 days after such Asset Sale and (C) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause subclause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.52.0% of Consolidated Total Assets and $100.0 million at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), in each case shall be deemed to be cash for purposes of this provision; and
(D3) Upon the fair market value (measured as consummation of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any an Asset Sale, the Company shall apply, or cause such Restricted SubsidiarySubsidiary to apply, at its option, may apply an amount equal to the Net Cash Proceeds from relating to such Asset SaleSale within 360 days of receipt thereof either:
(1A) to repay, prepay, redeem permanently reduce Indebtedness under a Bank Facility or repurchase to permanently repay any secured Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary or any Indebtedness of any Restricted Subsidiary that is not a Guarantor;
(B) to make an investment in properties and other Obligations assets (other than Subordinated Indebtednessincluding Capital Stock) that replace the properties and assets that were the subject of such Asset Sale or in properties and assets that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”);
(2C) to acquire repay other Pari Passu Indebtedness; provided that the Company shall also equally and ratably reduce Indebtedness under the Notes by making an offer (in accordance with the procedures set forth below for a Net Proceeds Offer) to all or substantially all Holders to purchase the pro rata principal amount of Notes, in each case at a purchase price equal to 100% of the assets principal amount thereof, plus accrued and unpaid interest, if any, to the repurchase date (subject to the right of another Related Business, or holders of record on the relevant record date to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, receive interest due on the Related Business is or becomes a Restricted Subsidiary of the Company;relevant Interest Payment Date); and/or
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5D) a combination of prepayments prepayment and investments investment permitted by the foregoing clauses (1), A) - (2), (3) and (4C); provided that in the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds case of an investment in Replacement Assets pursuant to clause (2), (3B) or (4D) above, a binding commitment shall be treated as a permitted application of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net ProceedsCash Proceeds from the date of such commitment and, in the event such binding commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are so applied, the Company has entered or such Restricted Subsidiary enters into and not abandoned or rejected a another binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed commitment within 180 days after the end of such 365-day periodcancellation or termination of the prior binding commitment.
(cb) Pending the final application of such Net Cash Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities Bank Facility or any other revolving credit facility, if any, facility or otherwise invest such the Net Cash Proceeds in any manner not prohibited by this the Indenture. Subject to Section 4.10(e), on On the 366th 361st day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clause clauses (1), (2), (3), (4) or (53)(A)-(D) of Section 4.10(b4.07(a) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which have (rounded down to the nearest $1,000) that has not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (53)(A)-(D) of Section 4.10(b) the preceding paragraph or the last provision of this paragraph (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 15 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms and holders of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to basis, the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal maximum amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of and Pari Passu Indebtedness) Indebtedness equal to the Net Proceeds Offer Amount. The offer Amount at a price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such and Pari Passu Indebtedness)Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, date of purchase; provided that if at any time any non-cash consideration received by the Company or any Restricted SubsidiarySubsidiary 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 4.104.07.
(ec) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 100.0 million resulting from one or more Asset Sales (at which time time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 100.0 million, shall be applied as required pursuant to this Section 4.104.07).
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.07, and in which case shall comply with the Net Proceeds Offer Trigger Date provisions of this Section 4.07 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be the earliest date that the Net Cash Proceeds Offer Amount is equal to or in excess for purposes of $200.0 million)this Section 4.07.
(fe) Each Net Proceeds Offer will be sent delivered 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 3.09the Indenture, and in the case of Global Notes, the procedures of the Depositary. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part (in minimum denominations amounts of $2,000 or €100,000 and integral multiples of $€1,000 in excess thereof thereof) in exchange for cash. To the extent that the aggregate principal amount of Holders properly tender Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, and holders of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes of tendering Holders (and, if applicable, and Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal aggregate amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such and Pari Passu Indebtedness tendered (and not withdrawn). To the extent that Trustee shall select the aggregate tendered Notes of tendering Holders on a pro rata basis based on the amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zeroIndebtedness tendered). A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer or shorter period as may be required or permitted, respectively, by applicable law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use those Net Cash Proceeds for any purpose not otherwise prohibited by the Indenture. Upon completion of each Net Proceeds Offer, the amount of Net Cash Proceeds will be reset at zero.
(gf) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.07, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.07 by virtue of such compliancethereof.
Appears in 1 contract
Asset Sales. (a) The Company will notNeither Group nor the Borrower will, and they will not permit any of its Restricted Subsidiaries other Obligor to, directly or indirectly, consummate an any Asset Sale unless:
unless (1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time received in respect of such Asset Sale is at least equal to the fair market value (measured as Fair Market Value of the date of the definitive agreement with respect assets subject to such Asset Sale, and (b) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
either (2i) at least 7585% of the value of the consideration received by Group or such other Obligor in the respect of such Asset Sale by the Company or such Restricted Subsidiary is in the form of any combination of the following: (A) cash or Cash Equivalents. For purposes , (B) Aircraft Related Equipment or other assets to be owned by and used in the business of this provision only Group or any other Obligor, and (and specifically not for C) the purposes assumption by the Person acquiring the assets in such Asset Sale of Indebtedness or Trade Payables of Group or any other Obligor with the definition of “Net Proceeds”), effect that the Obligors will no longer have any obligation with respect to such Indebtedness or Trade Payables or (ii) each of the following shall be deemed to be cashconditions is satisfied:
(A) any liabilities (as shown on At least 85% of the Company’s value of the consideration received by Group or such Restricted Subsidiary’s most recent balance sheet) other Obligor in respect 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 such Asset Sale consists of any such assets;combination of cash, Cash Equivalents, and Non-Cash Instruments (the "85% Test", and any Asset Sale the consideration for which includes a Non-Cash Instrument, a "Specified Asset Sale").
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days The assets sold are converted by the Company or such Restricted Subsidiary into cash (limited to the extent of the cash received in that conversion);Eligible Assets.
(C) any Designated Noncash Consideration received by On or before June 30, 2005, the Company or any Restricted Subsidiary in such applicable Obligor has either (x) entered into definitive agreements for the Specified Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value only material conditions to closing being regulatory and airport authority approval and other third party consents and authorizations typically obtained during the period between signing and closing in sale transactions involving property of each item the type to be sold in the Specified Asset Sale) or (y) has entered into a non-binding letter of Designated Noncash Consideration intent with the proposed purchaser obligating the parties to proceed diligently and in good faith toward concluding binding agreements with respect to such proposed Specified Asset Sale and the parties enter into definitive agreements with respect to such proposed Specified Asset Sale (with the only material conditions to closing being measured at regulatory and airport authority approval and other third party consents and authorizations typically obtained during the time received period between signing and without giving effect closing in sale transactions involving property of the type to subsequent changes be sold in value; andthe Specified Asset Sale) on or before September 30, 2005.
(D) the fair market value (measured as The Boards of Directors of the date Borrower and Group shall have received from a nationally recognized investment bank or firm of valuation experts selected by them and reasonably acceptable to the Board an opinion, in form and substance reasonably acceptable to the Board, to the effect that Group (or its applicable Subsidiary) is receiving fair consideration for the assets being sold, such Equity Interests or assets are received) opinion to be subject to customary limitations and qualification for opinions of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this type.
(bE) Any Non-Cash Instrument received by Group or its Subsidiaries in connection with a Specified Asset Sale and necessary to satisfy the 85% Test shall have an amortization, installment, rent or similar schedule requiring the issuer thereof to make payments to Group or its Subsidiaries at a rate no slower on a percentage basis than the original amortization schedule for the Loan.
(F) Any provisions of Section 2.6(b) to the contrary notwithstanding, the Borrower shall prepay the Loan in an aggregate amount equal to one hundred percent (100%) of the cash payments (including interest payments) received by Group or its Subsidiaries in respect of such Non-Cash Instruments. Any such prepayment shall be applied ratably against the Tranche A and Tranche B portions of the Loan. Within 365 each tranche, such payments shall be applied pro rata against the remaining scheduled principal payments on the Loan (as such scheduled payments have been adjusted as a result of previous payments and prepayments), including, if such payment is received on a date that the Borrower is obligated to make a principal payment on the Loan in accordance with Section 2.3, against the payment due on such date.
(G) Any Non-Cash Instrument (including the proceeds therefrom), any other non-cash consideration (and proceeds), and any cash consideration to the extent not used to prepay the Loan which is received by Group or its Subsidiaries in connection with any such Specified Asset Sale shall be pledged on a first priority basis to the Collateral Agent to secure the Obligations in accordance with the terms of the Loan Agreement and such pledge shall be perfected.
(H) Any Non-Cash Instruments applied toward the 85% Test shall be secured by a perfected first priority security interest in all of the Eligible Assets sold.
(I) Immediately prior to (or, at the Borrower's option, shortly after and in any event within 30 days after after) the receipt time of any Net Proceeds execution and delivery of any definitive documentation (the "Determination Date") relating to a Specified Asset Sale, the Company or Borrower shall cause Fitch to provide (i) a pro forma rating on the Loan (the "Applicable Loan Rating"), such Restricted Subsidiary, at its option, may apply an amount equal pro forma rating to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, be made after giving effect to any the consummation of such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary Specified Asset Sale and voluntary prepayments of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beLoan made prior to, in connection with any or relating to such Specified 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to modifications of the extent such laws and regulations are applicable Loan Agreement made prior to, 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 relating to, such Specified Asset Sale (collectively with the provisions of Section 3.09 or this Section 4.10such Specified Asset Sale, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.the
Appears in 1 contract
Samples: Loan Agreement (Us Airways Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or 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 (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”), 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;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion);
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Asset Sale:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness), or to offer to repay the Notes at par, plus accrued and unpaid interest, pursuant to the Net Proceeds Offer provisions of Section 4.10(c) (and upon completion of such offer, the amount of Net Proceeds offered to be applied to repurchase the Notes shall be deemed to have been applied in accordance with this Section 4.10(b)(1);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 days nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10[Reserved].
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Post Holdings, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its the Company’s Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet or the notes thereto, of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Note Guarantee) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary of the Company from such transferee that are, within 180 days are 365 days, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);
(Ci) any Designated Noncash Non-cash Consideration received by the Company or a Restricted Subsidiary in connection with the sale or contribution of assets by the Company or a Restricted Subsidiary to a joint venture, provided, however, that (x) any such Designated Non-cash Consideration that is converted into cash or Cash Equivalents shall be treated as Net Proceeds in the manner set forth below and (y) in the event such Designated Non-cash Consideration is an Investment (other than in the form of Indebtedness), such Designated Non-cash Consideration shall be deemed to have been acquired and consequently reduce amounts available under clause (18) or (26) of the definition of “Permitted Investments,” as determined by the Company; and
(ii) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cii) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 20.0 million and (by) 3.52.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(D) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary of the Company that is not subordinated Indebtedness; and
(DE) the fair market value (measured as of the date such Equity Interests or assets are received) Indebtedness of any Equity Interests Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any payment obligations with respect to such Indebtedness or assets any Guarantee of the kind referred to payment of such Indebtedness in clauses (2) or (4) of Section 4.10(b)connection with such Asset Sale.
(b) Within 365 days after the receipt of any Net Proceeds of any from an Asset Sale, the Company (or such the applicable Restricted Subsidiary, at its option, as the case may be) may apply an amount equal to the such Net Proceeds from such Asset SaleProceeds:
(1) to repayreduce Indebtedness and other Obligations under or pursuant to a Credit Facility or any Secured Indebtedness (unless the Notes are then secured by a priority or pari passu lien) of the Company or any Restricted Subsidiary and, prepayif the Indebtedness repaid is revolving credit Indebtedness, redeem or repurchase to correspondingly reduce commitments with respect thereto if and to the extent such commitment reduction is required pursuant to the terms of such Credit Facility;;
(2) to reduce Indebtedness and other Obligations of a Restricted Subsidiary that is not a Guarantor (other than Subordinated Indebtedness) and other Obligations (other than Subordinated IndebtednessIndebtedness owed to the Company or a Restricted Subsidiary of the Company);
(23) to repay (i) Indebtedness or other Obligations of the Company that rank pari passu with the Notes or (ii) Indebtedness and other Obligations of a Guarantor that rank pari passu with such Guarantor’s Note Guarantee (other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company); provided that the Company shall equally and ratably redeem or repurchase the Notes pursuant to Section 3.07 hereof, or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to but not including the date of repayment;
(4) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of Capital Stock of, another Related Permitted Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock, the Related Permitted Business is or becomes a Restricted Subsidiary of the Company;
(35) to make a capital expenditureexpenditure or Permitted Investments;
(46) to acquire other assets (other than securities or current assets) that will be used or useful make an investment in furtherance of a Related Permitted Business; or
(57) a any combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the foregoing. The Company and its Restricted Subsidiaries will be deemed to have applied such Net Proceeds pursuant to complied with the provisions set forth in clause (24), (35) or and (46) of this Section 4.10(b), as applicable, ) if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company (or the applicable Restricted Subsidiary) has entered into and not abandoned or rejected a binding agreement to consummate acquire all or substantially all of the assets of, or any reinvestment described Capital Stock of, another Permitted Business or to make a capital expenditure, Permitted Investment in clause (2)Investment in furtherance of a Permitted Business and that Investment, (3) Permitted Investment or (4) of this paragraph, and such reinvestment capital expenditure is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any Net Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Pending Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) hereof will constitute “Excess Proceeds.” When the final application aggregate amount of such Net ProceedsExcess Proceeds exceeds $20.0 million, within 30 days thereof, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after will make an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not Offer to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Notes and all holders of Indebtedness of the Company ranking that ranks pari passu with the Notes and containing provisions similar to those set forth in right of payment and which has similar provisions requiring the Company either this Indenture with respect to make an offer offers to repurchase purchase, prepay or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”)of sales of assets to purchase, from the holders of such Pari Passu Indebtedness) prepay or redeem on a pro rata basis the maximum principal amount (in proportion to the respective principal amounts or accreted value, as if applicable) of Notes and such other pari passu Indebtedness (plus all accrued interest on the case Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may bebe purchased, prepaid or redeemed out of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness)amount, plus accrued and unpaid interest thereonand Additional Interest, if any, to but not including the Net date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on a relevant record date to receive interest due on an interest payment date occurring on or prior to the Purchase Date, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed remain after consummation 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 Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use those Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (plus, if applicableor required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount Company will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or accreted valuerequired to be prepaid or redeemed, as and thereafter the case may be, of Pari Passu Indebtedness) validly tendered by Trustee will select the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of tendered (with, in each case, such adjustments as may be deemed appropriate by the Notes andCompany or the Trustee, if as applicable, the principal amount so that only Notes in denominations of $1,000, or accreted valuean integral multiple of $1,000 in excess thereof, as the case may bewill be purchased, provided that any unpurchased portion of any such Pari Passu Indebtedness tendered and not withdrawna Note must be in a minimum denomination of $2,000). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(gd) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (BioScrip, Inc.)
Asset Sales. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless:
Sale, unless (1x) the Company (Borrower or the 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 Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved determined in good faith by the Company’s Board of Directors; and
Directors of the Borrower) of the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received in the Asset Sale by the Company Borrower or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(Ai) any liabilities (as shown on the CompanyBorrower’s or such Restricted Subsidiary’s most recent balance sheet) of the Company Borrower or any Restricted Subsidiary of the Borrower (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeLoans) that are assumed by the transferee of any such assets;,
(Bii) any securities, notes or other obligations or other securities or assets received by the Company Borrower or any such Restricted Subsidiary of the Borrower from such transferee that within 180 days are converted by the Company Borrower or such Restricted Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received in that conversionreceived);, and
(Ciii) any Designated Noncash Non-cash Consideration received by the Company Borrower or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value (as determined in good faith by the Board of Directors of the Borrower), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the that time outstanding, not to exceed the greater of (a) $300.0 50 million and (b) 3.5or 2.5% of Consolidated Total Assets of the Borrower at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) shall be deemed to be Cash Equivalents for the fair market value (measured as purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of this Section 4.10(b).
(b) 6.09. Within 365 395 days after the receipt by the Borrower or any Restricted Subsidiary of any the Borrower of the Net Proceeds of any Asset Sale, the Company Borrower or such Restricted Subsidiary, at its option, Subsidiary of the Borrower may apply an amount equal to the Net Proceeds from such Asset Sale, at its option:
(1) to repayrepay Secured Indebtedness, prepayincluding Indebtedness under the Opco Credit Agreement and, redeem if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto or repurchase Pari Passu Indebtedness (provided that if the Borrower shall so reduce Obligations under Pari Passu Indebtedness (other than Subordinated Pari Passu Indebtedness that is Secured Indebtedness), the Borrower will equally and ratably reduce Obligations under the Loans if the Loans are then prepayable or, if the Loans may not then be prepaid, by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Lenders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and other Obligations (unpaid interest, if any, the pro rata principal amount of Loans that would otherwise be prepaid) or Indebtedness of a Restricted Subsidiary, in each case other than Subordinated Indebtedness owed to the Borrower or an Affiliate of the Borrower; provided, however, that if an offer to repay or repurchase any Indebtedness of any Restricted Subsidiary of the Borrower is made in accordance with the terms of such Indebtedness);, the obligation to permanently repay Indebtedness of a Restricted Subsidiary will be deemed to be satisfied to the extent of the amount of the offer, whether or not accepted by the holders thereof, and no Excess Proceeds in the amount of such offer will be deemed to exist following such offer; or
(2) to acquire all make an investment in any one or substantially all more businesses (provided that if such investment is in the form of the assets acquisition of another Related BusinessCapital Stock of a Person, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes results in such Person becoming a Restricted Subsidiary of the Company;Borrower), or capital expenditures or assets, in each case used or useful in a Similar Business, and/or
(3) to make an investment in any one or more businesses (provided that if such investment is in the form of the acquisition of Capital Stock of a capital expenditure;
(4) to acquire other Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Borrower), properties or assets (other than securities that replace the properties and assets that are the subject of such Asset Sale or current assets) Event of Loss; provided that will be used or useful in a Related Business; or
(5) a combination the case of prepayments and investments permitted by the foregoing clauses (1), (2), ) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as (x) such purchase is consummated within 545 days after the receipt by the Borrower or any Restricted Subsidiary of the Net Proceeds of any Asset Sale and (4y) if such purchase is not consummated within the period set forth in subclause (x); provided that , the Company and its Restricted Subsidiaries Net Proceeds not so applied will be deemed to have applied such Net be Excess Proceeds pursuant to clause (2as defined below), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) . Pending the final application of any such Net Proceeds, the Company Borrower or any such Restricted Subsidiary of the Borrower may temporarily reduce borrowings Indebtedness under the Credit Facilities or any other a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, that are not applied as provided and within the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as time period set forth in clause the second paragraph of this Section 6.09 (1), (2), (3), (4) or (5) it being understood that any portion of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary used to make an offer to purchase prepay the Loans, as described in clause (1) above, shall be deemed to have been invested whether or not such offer is accepted) will be deemed to constitute “Excess Proceeds.” When the “Net aggregate amount of Excess Proceeds Offer”) on a date (exceeds $25 million, the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to Borrower shall make an offer to repurchase or all Lenders (and, at the option of the Borrower, to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”), from ) to prepay the holders maximum principal amount of Loans (and such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case that is an integral multiple of $1,000 that may be, be prepaid out of the Notes and any such Pari Passu Indebtedness) Excess Proceeds at an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be cash in an amount equal to 100% of the principal amount of thereof (or, in the Notes (or event such Pari Passu Indebtedness was issued with significant original issue discount, 100% of the principal amount or accreted valuevalue thereof), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be provided for by the case may be, terms of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding date fixed for the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may beclosing of such offer, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice this Agreement; provided, however, notwithstanding the foregoing, in the case of an Asset Sale by Opco or any Restricted Subsidiary of Opco, the Net Proceeds Offer, Holders may elect Borrower shall not be required to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To make an Asset Sale Offer to the extent Opco is not permitted pursuant to the terms of its outstanding Indebtedness, any other agreement or applicable law to fund such Asset Sale Offer. The Borrower will commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $25 million by providing the aggregate principal amount notice required pursuant to the terms of Notes (plus, if applicable, this Agreement to the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn)Administrative Agent. To the extent that the aggregate amount of the Notes Loans (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any and such Pari Passu Indebtedness) tendered elected to be prepaid pursuant to a Net Proceeds an Asset Sale Offer is less than the Net Proceeds Offer AmountExcess Proceeds, the Company Borrower may use such excess Net any remaining Excess Proceeds Offer Amount for general corporate purposes or for any other purpose that is not prohibited by this IndentureAgreement. If the aggregate principal amount of Loans by Lenders thereof exceeds the amount of Excess Proceeds, the Borrower shall prepay Loans (and such Pari Passu Indebtedness) to be prepaid in the manner described below. Upon completion of any such Net Proceeds Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company or such Restricted Subsidiary shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the any of its Restricted Subsidiary, as the case may be) Subsidiaries receives consideration (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiaries (considered together on a cumulative basis, with all consideration received by the Company or any of its Restricted Subsidiaries in respect of other Asset Sales consummated since the Measuring Date) is in the form of cash or Cash Equivalents. For purposes of this provision only (and specifically not for the purposes of the definition of “Net Proceeds”)provision, each of the following shall will be deemed to be cash:
(A) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated 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 GuaranteeSubordinated Debt) that are assumed by the transferee of any such assetsassets pursuant to a customary novation or indemnity agreement (or other legal documentation with the same effect) that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 90 days are after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash (cash, to the extent of the cash received in that conversion);; and
(C) any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.5% of Consolidated Total Additional Assets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses clause (2) or (4) of Section 4.10(b)) hereof.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale or, if the Company has entered into a binding commitment or commitments with respect to any of the actions described in clause (2) or (3) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset SaleSale and (y) 120 days after the entering into of such commitment or commitments, the Company or such one or more of its Restricted Subsidiary, at its option, Subsidiaries may apply an amount equal to the amount of such Net Proceeds from such Asset SaleProceeds:
(1) to repay, prepay, redeem or repurchase Indebtedness (other than Subordinated Indebtedness) and other Obligations (other than Subordinated Indebtedness);
(2) to acquire all or substantially all of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); Senior Debt provided that the Company and its Restricted Subsidiaries will be deemed such repayment, redemption or repurchase may close up to have applied such Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 45 days after the end of such 365-day period;
(2) to invest in or acquire Additional Assets; or
(3) to make capital expenditures in respect of a Permitted Business. Pending the final application of any Net Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Pending An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (3) of Section 4.10(b) hereof will constitute “Excess Proceeds.” Within ten Business Days after the final application aggregate amount of Excess Proceeds exceeds $30.0 million, the Issuers will 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 containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of Notes and such Net other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Liquidated Damages, if any, to but excluding the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or use those Excess Proceeds for any other revolving credit facility, if any, or purpose not otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to Section 4.10(e), on the 366th day (as extended pursuant to the provisions be prepaid or redeemed in the preceding paragraphconnection with) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate exceeds the amount of Net Proceeds which have not been applied on or before Excess Proceeds, the Trustee will select the Notes and such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either Indebtedness to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) be purchased on a pro rata basis (in proportion to the respective principal amounts or accreted value, except that any Notes represented by a Global Note will be selected by such method as the case Depositary or its nominee or successor may berequire or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Excess Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Datereset at zero.
(d) Notwithstanding the foregoingforegoing paragraphs of this Section 4.10, if at any time any non-cash consideration received the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed provisions 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 Section 4.14 and/or Section 5.01 hereof and the Net Proceeds thereof shall be applied in accordance with not by this Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, or compliance with this Section 4.10 would constitute a violation of any such laws or regulations, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(f) In the event that, pursuant to the preceding provisions of this Section 4.10, the Issuers are required to commence an Asset Sale Offer, the Issuers will follow the procedures specified below.
(1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness 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. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness 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.
(2) If the Purchase Date is on or after an interest 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 record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess thereof;
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a letter or electronic transmission setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000 will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(4) On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request from the Issuers, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Samples: Indenture (NGL Energy Partners LP)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) Fair Market Value of the assets sold, leased, transferred, conveyed or otherwise disposed of or Equity Interests issued or sold of any Restricted Subsidiary of the Company issued, sold, transferred, conveyed or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and;
(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision only clause (and specifically not for the purposes of the definition of “Net Proceeds”2), each of the following shall will be deemed to be cash:
(Aa) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary GuaranteeNotes) that are assumed by the transferee of any such assetsassets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company or such Restricted Subsidiary into cash (within 90 days, to the extent of the cash received in that conversion);; and
(Cc) any Designated Noncash Non-cash Consideration received by the Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (Cc) since the Issue Date that is at the time outstanding, not to exceed the greater of (a) $300.0 million and (b) 3.55.0% of the Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, Non-cash Consideration (determined based on the most recently ended fiscal quarter for which internal financial statements are available and with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of this paragraph and for no other purpose; and
(D3) the fair market value Company delivers an Officers’ Certificate to the Trustee certifying that such Asset Sale complies with the foregoing clauses (measured as 1) and (2). To the extent that the Fair Market Value of any Asset Sale exceeds 10% of Consolidated Total Assets at the time of receipt of the date such Equity Interests or assets are received) Net Proceeds of any Equity Interests or assets such Asset Sale (determined based on the most recently ended fiscal quarter for which internal financial statements are available and with the Fair Market Value of each Asset Sale being measured at the kind referred to in clauses (2) or (4) time of Section 4.10(bsuch Asset Sale).
(b) Within , then within 365 days after the receipt of any Net Proceeds of from any such Asset Sale, the Company or such Restricted Subsidiary, at its option, Subsidiary may apply an amount equal those Net Proceeds (but shall only be required to apply that portion of the Net Proceeds from such Asset Sale:Sale that exceeds 10% of Consolidated Total Assets) at its option (or any portion thereof):
(1) to repay, prepay, redeem or repurchase Indebtedness permanently repay Senior Debt of the Company (other than Subordinated Indebtedness owed to the Company or any Affiliate of the Company) and, if the Senior Debt repaid is revolving credit Indebtedness) and other Obligations (other than Subordinated Indebtedness), to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of another Related Businessof, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity Interests, the Related Business is or becomes a Restricted Subsidiary all of the Company;Voting Stock of, another Person engaged in a Permitted Business; or
(3) to make a capital expenditure;
(4) to acquire other long-term assets (other than securities or current assets) property that will be are used or useful in a Related Permitted Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1), (2), (3) and (4); provided that the Company and its Restricted Subsidiaries will be deemed a binding commitment to have applied such apply Net Proceeds pursuant to clause (2), (3) or (4) of this Section 4.10(b), as applicable, if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to consummate any reinvestment described in clause (2), (3) or (4) of this paragraph, and such reinvestment is thereafter completed within 180 days after the end of such 365-day period.
(c) Pending the final application of such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), ) and (3), (4) or (5) above shall be treated as a permitted application of Section 4.10(b) (each a “the Net Proceeds Offer Amount”) shall be applied by from the date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then the Company or such Restricted Subsidiary shall be permitted to apply the Net Proceeds in any manner set forth in clauses (1), (2) and (3) above before the expiration of such 180-day period, and, in the event the Company or such Restricted Subsidiary fails to do so, such Net Proceeds shall constitute Excess Proceeds (as defined below). Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that were required to be applied in accordance with the first sentence of the immediately preceding paragraph and that are not so applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will make an offer to purchase (the “Net Proceeds Asset Sale Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from to all Holders (to purchase the maximum principal amount of Notes and, if the Company is required by to do so under the terms of any other Indebtedness of the Company ranking that is pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchaseNotes, redeem or repay such other Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to with the respective principal amounts or accreted valueNotes, as the case that may be, be purchased out of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer AmountExcess Proceeds. The offer price in any Net Proceeds Asset Sale Offer shall will be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereoninterest, if any, to the Net date of purchase, and will be payable in cash. If any Excess Proceeds Offer Payment Date.
(d) Notwithstanding remain after consummation of the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed purchase of for cash (other than interest received with respect all properly tendered and not withdrawn Notes pursuant to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and Offer, the Net Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net use such remaining Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and for any purpose not just the amount in excess of $200.0 million, shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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 3.09otherwise prohibited by this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that If the aggregate principal amount of Notes (plus, if applicableand other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the aggregate principal amount or accreted value, as Trustee will select the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof Notes and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu such other pari passu Indebtedness tendered by the holders thereof) will to be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenturebasis. Upon completion of any such Net Proceeds each Asset Sale Offer, the Net amount of Excess Proceeds Offer Amount shall will be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 those laws and regulations are applicable in connection with the each repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under Section 3.09 this Sections 4.12 or this Section 4.10 3.08 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Centene Corp)
Asset Sales. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1) the Company (Issuer or the 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 (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleIssuer) of the assets or Equity Interests issued or sold or otherwise disposed of, as approved in good faith by the Company’s Board of Directors; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received in the Asset Sale by the Company Issuer or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash or and Cash Equivalents. For purposes of this provision only (and specifically not for ; provided that the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cashamount of:
(A) any liabilities (as shown on the CompanyIssuer’s or such Restricted Subsidiary’s most recent balance sheetsheet or in the footnotes thereto) of the Company Issuer or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) the Guarantees, that are assumed by the transferee of any such assets;assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
(B) any securities, notes or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from such transferee that within 180 days are converted by the Company Issuer or such Restricted Subsidiary into cash and/or Cash Equivalents (to the extent of the cash received in that conversion);and/or Cash Equivalents received) within 180 days following the closing of such Asset Sale, and
(C) any Designated Noncash Non-cash Consideration received by the Company Issuer or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Issuer), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (C) since the Issue Date that is at the that time outstanding, not to exceed the greater of (ax) $300.0 150.0 million and (by) 3.57.0% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(D) the fair market value (measured as , shall be deemed to be cash and Cash Equivalents for purposes of the date such Equity Interests or assets are received) of any Equity Interests or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b)this provision and for no other purpose.
(b) Within 365 450 days after the receipt of any Net Proceeds of any Asset Sale, the Company Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the such Net Proceeds from such Asset Sale:,
(1) to repaypermanently reduce:
(A) Obligations under the Senior Credit Facilities, prepay, redeem or repurchase and to correspondingly reduce commitments with respect thereto,
(B) Obligations under Indebtedness (other than Subordinated Indebtedness) that is secured by Liens, which Liens are permitted by this Indenture, and to correspondingly reduce commitments with respect thereto,
(C) Obligations under other Senior Indebtedness (and to correspondingly reduce commitments with respect thereto); provided that the Issuer shall equally and ratably reduce Obligations under the Notes as provided under Section 3.07 hereof, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid, or
(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Subordinated Indebtedness);Indebtedness owed to the Issuer or another Restricted Subsidiary; or
(2) to acquire all make (a) an Investment in any one or substantially all more businesses, provided that such Investment in any business is in the form of the assets of another Related Business, or to acquire any Equity Interests of another Related Business, if, after giving effect to any such acquisition of Equity InterestsCapital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the Related Business is or becomes case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary (which acquisition may be in the form of a merger, amalgamation, consolidation or similar transaction), (b) capital expenditures or (c) acquisitions of other assets, in the Company;case of each of (a), (b) and (c), used or useful in a Similar Business, or
(3) to make an Investment in (a) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a capital expenditure;
Restricted Subsidiary (4) to acquire other assets (other than securities which acquisition may be in the form of a merger, amalgamation, consolidation or current assets) that will be used or useful in a Related Business; or
(5) a combination of prepayments and investments permitted by the foregoing clauses (1similar transaction), (2b) properties or (c) other assets that, in the case of each of (a), (3b) and (4c), replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer, or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 90 days of such cancellation or termination (or, if later, 450 days after receipt of such Net Proceeds); provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from the Company Asset Sale that are not invested or applied as provided and its Restricted Subsidiaries within the time period set forth in Section 4.10(b) (it being understood that any portion of such Net Proceeds used to make an offer to repurchase Notes, as described in clause (b)(1)(C) above, will be deemed to have been so applied whether or not such Net offer is accepted) shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $75.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is $2,000 or an integral multiple of $1,000 in excess thereof that may be 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, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds exceed $75.0 million by mailing or electronically delivering the notice required pursuant to clause (2), (3) or (4) the terms of this Section 4.10(b)Indenture, as applicable, if and with a copy to the Trustee or otherwise in accordance with the procedures of DTC. To the extent that, within 365 days after that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale that generated Offer is less than the Net Excess Proceeds, the Company has entered into Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to compliance with other covenants contained in this Indenture. If the aggregate principal amount of Notes and not abandoned or rejected a binding agreement to consummate any reinvestment described the Pari Passu Indebtedness surrendered in clause (2)an Asset Sale Offer exceeds the amount of Excess Proceeds, (3) or (4) of this paragraph, the Trustee shall select the Notes and such reinvestment is Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes and such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether Notes and Pari Passu Indebtedness were surrendered and whether any Excess Proceeds thereafter completed within 180 days after the end of such 365-day periodremain).
(cd) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the holder of such Net Proceeds, the Company or any Restricted Subsidiary Proceeds may apply such Net Proceeds temporarily to reduce borrowings Indebtedness outstanding under the Credit Facilities or any other a revolving credit facility, if any, facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture. Subject to Section 4.10(e), on the 366th day (as extended pursuant to the provisions in the preceding paragraph) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (1), (2), (3), (4) or (5) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (1), (2), (3), (4) or (5) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 15 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if required by the terms of any other Indebtedness of the Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Net Proceeds Offer Payment Date.
(d) Notwithstanding the foregoing, if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, 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 Proceeds thereof shall be applied in accordance with Section 4.10.
(e) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $200.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $200.0 million, Issuer shall be applied as required pursuant to Section 4.10, and in which case the Net Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $200.0 million).
(f) Each Net Proceeds Offer will be sent 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. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased on a pro rata basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). To the extent that the aggregate amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(g) The Company or the applicable Restricted Subsidiary, as the case may be, 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10Indenture, the Company or such Restricted Subsidiary Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or described in this Section 4.10 Indenture by virtue of such compliancethereof.
Appears in 1 contract
Samples: Indenture (West Corp)
